# Record and brief — John Dobson and James Dobson, Appellants, vs. John Dornan, Francis Maybin, Robert Dornan & John Pickens, Trading as Dornan, Maybin & Company > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1884_202%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1884 ## Text TRANSCRIPT OF RECORD. SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1884. 4 | | No. dow 20)? JOHN DOBSON AND JAMES DOBSON, APPELLANTS, 1S JOHN DORNAN, FRANCIS MAYBIN, ROBERT DORNAN | & JOHN PICKENS, TRADING AS DORNAN, MAYBIN & ; COMPANY. __ : ‘ APPEAI, FROM THE CIKCUIT COURT OF THE UNITED STATES FOR THE i EASTERN DISTRICT OF PENNSYLVANIA. FILED MARCH 9, 18853. . Sr eo re ee BG ieee a Re ae oceania eee ene Pee Sb Re 4 vi aattea PE SUPREME COURT OF THE UNITED STATES. : | OCTOBER TER”, 1884. No. 482. JOHN DOBSON AND JAMES DOBSON, APPELLANTS. “Us JOHN DORNAN, FRANCIS MAYBIN, ROBERT DORNAN 9 & JOHN PICKENS, TRADING AS DORNAN, MAYBIN & { COMPANY. : x f APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.. INDEX. Original. Print. IONE sy occu Ser oa 2 sani i ea I i Bill of complaint —_ .- sie dcthiade eaeiaecns 5s eon paca ai 2 I Answer ap aS se bene eae ak i gear ejancnn 4 9 5 PICMNIOYT . iinw Souk acing 5 ee ee ae sate aeaenuaaen 12 7 Order appointing examiner | ___. ; (aon : score 14 7 Stipulation as to testimony ee ee as Sr Bone Mare 14 8 ) Evidence for complainants ... .-.--- oe a itp edn Cee 15 8 ; Testimony of Dixon Bean ae Haney pate’, ah! fe 15 8 : Charles A. Righter .--- a cain tae ae ee 18 10 Arthur McMaster ._.. cua Guus aecee 1s 10 John Lorne... .. oe aa tll: aw et aks aslaer ide dees al 19 11 | SOU WO BEN iia ss rc hk a ee : 20 11 George W. Golden fae a iwaace he saat be 26 15 Thomas | lepuy Peer Sw ada gee 5 erases 26 16 Alex. W. Skilton i ciauces iheone aad: ee 27 16 George W. Golden (recalled) ...........- sea ater at 31 1g John Kothera . Pie Petre, Biol oni tar aoa ee at 31 19 Exhibit No. 4—Letter of J. & J. Dobson to Dornan, Maybin & Co, May 20, 1874 ae corgi) Ree peer =a 2c JUDD & DETWEILER, PRINTERS, WASHINGTON. INDEX. , Evidence for defendants.__. ___. __.... _--. he 6a ods eens Testimony of Thomas Finley -- ~~~. iis ee irra Fores a, john T. W costar: 2. NG SPOTS AC ae Senn Hearing _. sae nee in heer ow ow ee ; Interlocutory. decree -. aaa SSS : ‘ Master’s report : RET Cae ee He rate ; Diaw Evidence for complainants before master. _- ee Oe Sa, ees ‘Testimony of James Deamon . 22: gar Oe A Robert Dornan PEI Lc eae Allen Cameron ; ea flartley Knight peace races ‘| homas Depuy as ue Benjamin ©. Martin op ie Be George ID). Bromley Pee raee es a James Dobson (vecatied?) .... Robert Dornan (recalled) __. coe Exhibit A—Statement of garpet- made in the pattern infringed -___-. B—Statement of prices of yarn sold at certain dates ( 1)—Statement of carpet made after pattern No. 408 by Dornan, Maybin & Co, SO ee ear aoe : eee ie K—Statement showing cost of making carpet for 1874 and oe OFS a Bae OLY ene atl Evidence fur defendants before master _. __. —-. oe ma Testimony of James Dobson me ee a ee he _* James Judge -.._.. ae : oe Exceptions to master’s report (defencdants’ } . coer eS Supplemental report of master. __- ey. ee Hiearing on exceptions ca oie, a ee ees Final decree Ret Ore | Paice costae et oe Order allowing appeal .__~-. pene ‘ wie fee Aen pao ae Bond i ew : Citation aus “oct ; Proof of service of citation Sepa ene eR NIU ne geen gO ce Clerk’s certificate .____- : : on t "Statement of cost of making ingrain carpet in March, 1875 Original. te Print. CERCA EOS, . & | AL. VS. JOHN DORNAN RET AL. JOHN DOBSON ET ] UNITED. STATES OF AMERICA, as Eastern District of Pennsylvania, In the Circuit Court of the United States in and for the Eastern District of Pennsylvania, in the Third Circuit. No. 2. April Sess., 1875. In Equity. JOHN DoRNAN, Francis Maye IN, RopeERT DorNAN, and Joun Pick- ENS, Trading as Dornan, Maybin and Company, | v. JOHN Dopson and JAMES Dopson. Pleas and proceedings before the honorable the judges of the circuit court of the United States in and for the eastern district of Penn- sylvania, in the third circuit, of April session, 1875. No. 2. It is thus contained : Be it remembered that on the 12th day of February, A. D. 1875, the complainants, by their solicitor, L. C. Cleemann, Esq., comes into our said court here and file of record their bill of complaint against John Dobson and James Dobson, which said bill, being read, is as follows, to wit: 2 In the Circuit Court of the United States for the Eastern Dis- trict of Pennsylvania. In Equity. To the honorable the judges of the circuit court of the United States, eastern district of Pennsylvania : John Dornan, Francis Maybin, Robert Dornan, and John Pick- ens, trading as Dornan, Mayvbin & Co., bring this their bill of com- plaint against John Dobson and James Dobson. And thereupon your orators complain and say : That they are informed and believe that one Charles A. Righter was and is the original and first inventor of a certain new and use- ful design for a carpet pattern to be inwrought into two-ply ingrain and other carpeting, fully described in the letters patent hereinafter mentioned, and which had not been known or used before his said invention, and which was not, at the time of his application for a patent, as hereinafter mentioned, in public use, or on sale, with his consent or allowance. And your orators, on information and belief, further show unto vour honors that said Charles A. Righter, being so, as aforesaid, the first inventor and discoverer of said design for a carpet pat- a tern, asaforesaid,and being also a citizen of the United States, did, on the nineteenth day of August, one thousand eight hundred and seventy-three, upon due application therefor, obtain letters patent of the United States for said invention and design for a carpet pattern as aforesaid, which : said letters patent were issued in accordance with the request of said Charles A. Righter to the said Dornan, Mavbin & Co., as the assignee of his said inventor's whole right therein and thereto, before grant of lette rs patent as is by statute in such ease made and provided, in due form of law, under the seal of the Patent Office of the United States, signed by B. R. Cohen, the [—452 treat et a cee ae JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. oN then acting Secretary of the Interior, and countersigned by M. D. Leggett, Commissioner of Patents of the United States, bearing date the day and year last aforesaid, and numbered 6822, whereby there was granted and secured to the said Dornan, Maybin & Co., and their assigns, or intended so to be, for the term of three and one half years, from and after the date of said letters patent, the full and ex- elusive right and liberty of making, weaving, using, and vending to others to be used, the said invention and design for a carpet pattern as aforesaid, as set forth in said letters patent here in court, ready to be produced as your honors may direct, will more fully and at large appear, and by virtue whereof said Dornan, Maybin & Co. became and are the sole owners of all the rights and privileges granted and secured, or intended so to be granted and secured, in and by said letters patent. | And your orators further show unto your honors that by virtue of the premises the said Dornan, May bin & Co. became and now are the sole and exclusive owners of said letters patent and invention and design for said carpet pattern, and of all the rights and_ privi- leges granted and secured, or intended to be so granted and secured thereby ; and that since said Dornan, Maybin & Co. became the owners thereof as aforesaid, the said Dornan, Maybin & Co. have in- vested and expended large sums of money, and have been to great trouble in and about said invention, and for the purpose of I carrying on the business and manufacturing and selling said design for a carpet pattern, and making the same profitable to said company and useful to the public; and that said invention and design has been and is of great benefitand advantage, and that two-ply ingrain and other carpetings have been and are still made by them according to said design for a carpet pattern in colors simi- lar to those painted on the dr: aWwihgs accompanying the specification, and in other colors substituted in their place and sold by said Dor- nan, Maybin & Co. to great advantage to the public, and that the public have generally ac ‘knowledge d and ac quiesced in the aforesaid rights of your orators. And your orators believe that they will realize and receive large gains and profits therefrom if infringements by said defendant and their confederates shall be prevented. Yet the said defendants, well knowing the premises and rights secured) to your orators aforesaid, but contriving to injure your orators aforesaid, and to deprive them, vour orators, of the benefits ‘and advantages which might, and otherwise would, accrue unto vour orators from said invention and design for a carpet pattern, and trem the sole m: king and selling carpets made in accordance therewith, alter the issuing of the letters patent as aforesaid, and before the commencement of this suit, did, as your orators are informed and believe, without the license or allowance, and against the will of vour orators, and In violation of their rights, and in infringement of the aforesaid letters patent, and the rights secured the reby, unlaw- fully and wrongfully, and‘in defiance of the rights of vour orators, make, construct, weave, use, and vend to others to be used, two-ply ingrain and other carpeting in ide according to, and employing and containing, suid Invention and design for a carpet pattern ; ‘and that ET JOHN DOBSON AL. VS. JOHN DORNAN ET AL. 3 the said John Dobson and James Dobson, and each of them, still continue so to do, and that they threaten to make the aforesaid two- ply ingrain and other carpeting in large quantities, and to supply the market therewith, and to sell the same for the best prices that they can obtain, to the manifest injurv of vour orators, and all in defi- ance of the rights acquired by and secured to your orators as 5 aforesaid, and to their great and irreparable loss and injury, and by which thev have been, and still vour orators are be- ing, de prived of great gains and profits, which your orators might and otherwise would have obtained, but which have been received _and enjoyed, and are still being received and enjoved, by the said de- féndants by and through their aforesaid unlawful acts and doings. And your orators further show unto vour honors, on information and belief, that said defendants have sold large quantities of said two-ply ingrain and other carpetings made in accordance with and in imitation of the said design for a carpet pattern of your orators, and have a large quantity on hand, which they are offering for sale, and have made and realized large profits and advantages therefrom, but to what extent and how much exactly vour orators do not know, and pray a discovery thereof. And your orators say that the use of said invention and design for a carpet pattern by said defendants and their preparation for and avowed determination to continue the same, and their other afore- said unlawful acts in disregard and defiance of the rights of your orators have the effect to encourage and induce others to venture to infringe said patent in disregard of the rights of your orators. And your orators further show unto your honors that your orators have always firmly affixed and now firmly affix to each roll of car- peting, bearing the design for a carpet patte rn aforesaid, so made and sold by them as ‘aforesaid, a certain label, containing, in words and figures, due notice that the same was and is patented, and of the date and number of the letters patent granted therefor. And vour orators further show unto vour honors, on information and belief, that the defendants in this suit are engaged in the In- fringements and unlawful acts above complained of in the city of Philadelphia, in the State of Pennsylvania, but whether said defend- ants are so engaged in the manufacture, use, and sale of said design for a carpet pattern in two-ply ingrain and other carpeting, 6 as principals, or in what other way are concerned therein, vour orators do not know and cannot state,and pray a discov- ery thereof by said defendants, and that said de fendants may fully and particularly set forth how they are engaged as aforesaid in said manufacture, use, and sale, and how long they have been engaged or concerned therein, and in what wav and to what extent; and forasmuch as your orators can have no adequate relief except in this court. | . To the end therefore that the said defendants may, if they can, show why your orators should not have the relief hereby prayed, ‘and may upon their best and utmost knowledge, remembrance, in- formation, and belief, full, true, direct, and perfect answers mi ake to the premises, and to all the several matters hereinbefore stated and and severally inter- -rogated as to each and every of said matters, aa miav be compelled to account for and pay to your orators the profits by them acquired, and the damages suffered by your orators from the aforesaid un- lawful acts. And your orators pray ‘that the said defendants, John Dobson and James Dobson, and each and eve ry of them, their servants, agents, attorneys, and workmen, and eac +) and every of them, may be re- strained and enjoined by the order and injunction of this honorable court, from direetly or indirectly making, constructing, weaving, using, vending, dé Jivering, working, or putting into practice, opera- tion, or use, Or In anywise Ccounte He iting or imitating the said in- vention or design for a carpet pattern, to. be sols In two-ply ingrain or other carpeting, or any part thereof, or any two- ply In- grain or other carpetings made in accordance therew ith, im imitation thereof, or like or similar to those which your orators have hereto- fore made, and that the said defendant may be decreed to pay the costs of this suit, and that your orators may have such other and such further relief as to this honorable court shall seem meet, and as shall be agreeable to equity. May it please your honors to grant unto your orators the writ of Injunction, Issuing out of and under the seal of this honorable mn due form of law, comm: nding, enjoming, and re- 7 court, straining the said defendants, and each of them, their ser- vants, agents, attorneys, confederates, and workmen, and each and eyery of them, as is hereinbefore in that behalf prayed. May it please vour honors to grant unto your orators the writ e subpoena, issuing out of and under the seal of this honorable court, directed to the said defendants, commanding them by a certain day, and under a certain penalty, to be and appear in this honorable eourt, then and there fo answer the premises, and to stand to, and abide such order and decree as may be made against them. And your orators will ever pray, &e. : | JOLIN DORNAN. RRANCIS MAYBIN. ROBERT DORNAN, : JOLIN PICKENS, -L. C. CLEEMAN, Solicitor and of Counsel for Coniplainants. UNITED STATES OF AMERICA, } Eastern District of Pennsylvania, j On this sixth day of February, [S75, before me personally ap- peared Robert Dornan, one of the oho complainants, who being by me duly sworn, did depose and sa He has read the foregoing bill of ai aint subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information | and belief, and as to those matters he believes it to be true. ROBERT DORNAN., N N e Pe SA RE AS A NURIA ERE ET SOC RRM MRED: Ainge LAE ie ABE 52 CR NS VS. JOHN DORNAN ET. AL. ET AU. JOHN DOBSON Affirmed to and subscribed before me, the day and year first above written. ge SAMUL KL BELL, U. S. Commissioner. 5S (Endorsed:) No.2.) April sess., 1875. United States circuit court, eastern district of Pennsylvania. In equity. John Dornan ef al. vs. John Dobson and James Dobson. Bill of com- plaint. Sir: Issue subpcena, returnable to the first Monday of April next. L. C. Cleemann, sol’r & of counsel for compl'ts. Filed Feb- ruary 12th, 1875. 9). And afterwards, to wit, on the 15th day of March, A.D.1878, the defendants, by their solicitor, Richard P. White, Esq., came into our said court bere and file- of record their answer to the com- plainants’ bill of complaint, which, being read, is as follows, to wit: Answer to Bill of Complaint. In the Cireuit Court of the U.S. for the Eastern District of Pennsyl- vania. April Sessions, 1875. No. 2. Jounx DorNAN, FRANCIS MAybin, Ropert Dornan, and JOHN Pickens, Trading as Dornan, Maybin «& Co., Us, JoHN Dopson and James Dopson.. These defendants, now and at all times hereafter, saving and _ re- serving to themselves, and each of them, all benefit’ and advantage of exce ption which can or may be had or taken to the many errors, uneertainties, and other iniperfections in the said complainants’ bill of complaint contained, for answer thereunto, or unto so much and such facts thereof as these defendants are advised is or are material or necessary for them, or any of them, to make answer unto, they, these defendants, seve rally answering, say: That these defendants have been informed, and believe, that one Charles A. Righter was and is the original and first inventor of a certain design for a carpet pattern, as set forth in the bill of com- plaint; but these defendants do not know the same of their own knowledge. And these defendants, further answering, say they. have heii in- formed. and believe it to be true, that the said Charles A. Righter did, on the 19th dav of August, 1573, obtain letters patent of the United States for said invention and design for a carpet pattern as aforesaid, which letters patent were issued to the said Dornan, May- bin & Co., as the assignee of said inventor’s whole right therein and thereto, bearing date, signed, countersigned, and numbered as set forth in the bill of complaint, whereby there was granted and _ se- cured to the said Dornan, Mavbin & Co., and their, assigns, for the term of three and one-half vears, the full and exclusive right 10 of making, weaving, using, and vending to others to be used, the said invention and design for a carpet pattern as afore- free as GH JOHN DOBSON ET AL. V3. JOHN DORNAN ET AL. said, as set forth in the bill of complaint; but these defendants, for greater certainty therein, crave leave to refer to the said letters pat- ent when the same shall be produced. And these defendants, further answering, say that they have never heard or been informed, save by the bill of complaint, whether the said Dornan, Maybin & Co. became and now are the sole and exclusive owners of said letters patent and invention and design for said carpet pattern, or whether the said Dornan, Maybin & Co. have, since becoming the owners thereof as aforesaid, invested and ex- pended large sums of money, and been to great trouble in and about said invention, or wasps two-ply ingrain or other carpetings have been and are still made by them, ac cording to said design for a car- pet pattern in colors, and sold by said Dornan, M: ivbin & Co. tothe pub- lic,or whetherthe public have generally ae knowledge dand acquiesced in the rights of the complainants, as alleged in the bill of complaint ; and these defendants cannot set forth as to their belief or other- wise in the aforesaid allegations in the bill of complaint. And these defendants further severally say that they did not, nor did either of them, to the knowledge or belief of the other of them, after the issuing of the letters patent as aforesaid, and betore the commencement of this suit, without the lcense or allowance, and vains? the will of the complainants, and in violation of their rights, and in infringement of the aforesaid letters patent, and the rights se- cured thereby, make, construct, weave, use, or vend to others to be used, two-ply ingrain or other carpeting, made according to and em- ployingand containing said invention and design fora carpet pattern ; nor do the said defendants, or either of them, still continue so to do, or threaten to make the aforesaid two-ply ingrain or other carpet- ing in large quantities, as alleged in the bill of complaint. And these defendants, further answering, sav that it may be true, for anything these defendants know to the contrary, that 1] the complainants have always firmly affixed, and now firmly aflix, to each roll of carpeting, bearing the design aforesaid, so made and sold by them as aforesaid, a certain label containing due notice that the same was and is patented, &e., as set forth in the bill of complaint, but these defendants are utter strangers to all and every such matters, and cannot form any belief concerning the same. All which matters and things these defendants are ready and will- ing to aver, maintain, and prove, as this honorable court shall direct, and humbly pray to be hence dismissed with their reasonable costs and charges in this behalf wrongfully sustained. JOHN DOBSON. JAMES DOBSON. This twelfth day of Mareh, A. D. 1875, personally appeared before me the above-named defendants, John Dobson and James Dobson. and, being duly sworn, did declare and say that the statements con- tained in the above answer were correct and true to the best of their knowledge, information, and belief. te AL. | . CHARLES H. WHITE, | Notary Public. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. ee (Endorsed :) CC. U.S. 2 unl sess., 1875. . Dornan et al. vs. Dobson et al. In equity. Answer to bill of complaint. Filed 13 March, 1875. R. P. White. ; 12 And afterwards, to wit, on. the 19th day of April, A. D. 1875, the compl: inants, by their solicitor, L. C.Cleemann, Esq., come into our said court here and file of record their replie ation to the answer of the reapers, which, being read, is as follows, to wit: - a = U.S.C. C., E. D. of Penna. April Sess., 1875. No.2. In Equity. JOHN DoRNAN, FRANcIS MAaysin, Ropert Donnan, and Jonn Picxk- ENS, Trading as Dornan, Maybin & Co., vs. JoHN Dopson and JAMES Dopson. The replication of John Dornan, Francis Maybin, Robert Dornan, and John Pickens, trading as Dorn: an, Maybin & Co., complain- ants, to the answer of ‘Sohn Dobson and James Dobson, defendants These repliants, saving and reserving unto themselves all manner of advantage of exception to the manifold insufficiencies of the said answer, for replication thereunto say that they will aver and prove their said bill to be true, certain, and sufficient in the law to be an- C4 swered unto, and that the said answer of the said defendants is un- certain, untrue, and insufficient to be replied unto by these repli- - ants; without this, that any other matter or thing whatsoever in the said answer contained, material or ineffectual in the law to be re- plied unto, confessed and avoided, traversed or denied, is true; all which matters and things these repliants are, and will be ready to aver and prove as this honorable court shall direct, and humbly pray as in and by, their said bill they have ~~ prayed, L. C. CLEEMANN, PPro for € omplainants. 13 (Endorsed :) 2 April sess. 1875. U.S.C. C., E. D. of Pa. Dornan et a/.vs. Dobson et al. In equity. Replication. Cleemann. Filed April 19, 1875. 14 And afterwards, to wit,on the 25th davof June, A. D. 1875, | the complainants, by their counsel, appear in open court and ; move the court for the ap pone nt of an examiner, whereupon the court made the following order, to wit : U.S:C.C. Oct. Sess., 1874. No. 2. DorRNAN ef al. vs. Dopson et al. And now, to wit, June 25, 1875, on motion of ¢ gage solicitor for comple Linants, the court appoint 3 Sussex D. Davis, rag xaminer, to take the proofs in the above case, and report the same to the court. ee See ee z ” ’ Ey: ~ : ‘ JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL. U.S. C.C., E. D. of Penna. «In Equity. April Sess., 1875. No. 2. JoHN Dornan, Francis Maypin, Ropert Dornan, and JoHn court examiner in the said case to take the | PickENs, Trading as Dornan, Maybin & Co., iene us, Jounx Dopson and JAMES Dopson. It is hereby agreed that the testimony taken in the above ~case before Thomas I. Merchant, Esq., have the same force and 15. : effect as though Mr’ Merchant had been appoimted by the roots and report the same to the court. 2 : 3 RICHARD P. WHITE, bor Defendants. L. C. CLEEMANN, For Coraplainants. Juny 6, 1875. Present: L. C. Cleeman, solicitor for plaintiffs; R. P. White, solici- tor for defendants. Dixon BEAN. sworn: $i ¢ Tam thirty-nine vears of age, and reside in Chicago, Hhnois; | -am in carpet business, in firm of Field, taghter & Co.; I have been -* Exhibit marked in this business eighteen years. r tf M.. No: ft. July 6, IS75.” offered in eyi- dence. ( Patent.) : ; [exhibit marked * Exhibit No. 2, T. E. M., July 6, 1875,” offered - In evidence. : 3 [am familiar with exhibit No. 2; I first saw it two or three years ago; | think I first saw it at Dornan & Maybin’s; I know the de- fendants in this suit: usually when I came to the market I cut off some clippings or cuttings, more particularly to get colorings for different patterns; Thad selected a quantity of them at home, and directed my porters to put them up, and among them was [exhibit No. PA In the second quality, and - had these samples directed to the care of Mr. Dobson, or to the hotel; they reached the mill—a portion of them—this piece amongst the number; after I had given out orders for what carpets [ wished made, this piece was thrown out one side, and | spoke to some one there, IT cannot say who it was, and asked whether they could not get one up something similar in color that complexion of carpet: there was no mention of copying the patent; afterwards T received a carpet from the 16 defendants, which was similar to Exhibit No. 3, T. Ek. M., : July 6, 1875; TP think IT could distinguish the different manu- factures; T should think that Exhibit No. 5 was made by Dobson, the defendants; Exhibit No. 2 is, T think, the most artistic pattern ; [ see a great number of different patterns in the carpet line in the i course of my business. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 9 Q. From your know ledge of designs of carpet patterns, do you think a designer could have produced E mpecau No. 3 without having first seen Exhibit No. 2? (Objected to by Mr. White.) A. I could not say; I am not well enough posted in the art of de- signing to give an opinion. Ido not know what access they have to ; objec ts such as are produced in the design. These objects may be very common, for ought I know; they may have design works con- taining these different designs or objects. (). Do you remember ever having seen a carpet bearing the design of Exhibit No. 2 before you saw Exhibit No. 2? A. I do not remember that I ever did; I have seen the Brussels with a medallion figure in it about the size of the largest medallion, but nothing in wool like it. Cross-examined by Mr. WHITE: My business in visiting the defendants was to order carpets made. My purpose in producing samples to the defendants was to give them an idea of the coloring that I wanted in the carpets. My idea was in bringing on the pieces of carpet to give the manufacturer an idea of ‘the colorings I wanted in the carpets I might select; that is, in or- dering from their patterns I could order them to make the carpets with such colorings as I gave them. When I showed them Exhibit No. 2, I asked thei if they could produce me something of that style of color, and subsequently carpet (Exhibit No. 3) came from the de- fendants. I should say the design of No. 3 is not the same as that of No. 2. I have looked them over very carefully, and cannot find one object in one which is like any object in the.other; every part of the pattern of No. 5 is different, I think, from No. 2 7 Q). Leaving out similarity of color and similarity of position of the medallions, is there any resemblance which you can point out between the two patterns ? A. Taking a glance or look at them, they have something of a similar appearance; they wouldn’t bear to be criticized though. Q. Be good enough to point out wherein they resemble each other, e xcept in the general coloring and the size and position of the medallions. A. I don’t know as I could. (. Can you say that the. two designs are substantially the same, taken as a whole or taken in detail? A. I think I answered that by saying that they are not alike in design; but taking a glancing look at them they have a similar ap- pearance. Q. It is no uncommon thing, Is it, for ¢ carpets made by different makers, and of ele arly different designs, where the obje ets are nearly the same size, and be longing. to the same general class, and the col- orings being the same, to have the sé same kind of similarity that you observe in these? A. I have seen cases of that kind. 2—452 ree pier le ans i th Ha oe ee eit mee ee meena oe - . 10 JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL, (). Is have any difficulty in perceiving that these two exhibits are of different designs whatever general similarity such as you have 3 alluded to there may be between them. ; A. No, Sir. ‘ he similarity of which you spe ak, then,is not such a similar- @ ity as would lead you to mistake one pattern for the other? “A. No.-sir. DIXON BE AN. Sworn and subscribed before me, this July 6, 1875. SUSSEX D. DAVIS, Evaminer. RIGHTER being duly sworn: Tam twenty-two years old; my name is Charles A. W Tighter; [ reside at No. 321 Richmond strect. Philade Tphia. Exhibit No. 1 shown witness. Jam familiar with that design; I am_ the | invented it about 28th of July, 1875; 18 CHARLES A. original inventor of this design ; I assigned it to the plaintills. Cross-examined by Mr. WHire: Every part of this design is original with me; I mean that every sprig and leaf is my own composition, : Q. And no part of the design suggested by any other design or pattern seen by you? A. No, sir. 7 . : 3 CHARLES A. RIGHTER. Sworn and subseribed, this 6th day of July, A. D, 1875. SUSSEX D. DAVIS, Examiner. ArtuurR McMaster, being duly sworn, says: My name is Arthur McMaster; [am thirty years of age; I reside at No. 24 Columbia avenue; Tam foreman of the plaintiffs; I am familiar with Exhibit No. 2: it is made after the design contained in Exhibit 1: it is correct: there is no difference at all: I ean’t tell exactly when it was invented; I saw it when it was making, but ] eannot give the exact time; Charles A. Righter invented it, the last witness: | have been foreman of the defendants ever since that was invented, and a yood while before; we have turned out at one time on this pattern fourteen pieces per week ; this pattern has been very successful; we have patterns that we only turned out one piece per week ; with carpets of equal quality everything is Hp In the design; the plaintiff’ have made large quantities of carpets bearing this design. Cross-examined by Mr. Wirre: No questions. oo | ARTHUR McMASTER. Sworn and subscribed before me, this 6th day of July, A. D. 1875. : SUSSEN D. DAV IS. Eacamener. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 11 JouNn Dornan, being duly sworn, says: My name is John Dérnan; I am one of the plaintiffs; I am thirty-eight vears of age; I reside at No. 1424 Franklin street, in the city of Philadelphia; I attend to the manufacturing, designing, and machinery part of our business; I have been connected with the carpet trade for twenty-eight years as carpet stamper, designer, manufacturer, and weaver; I have got up great numbers of designs, hundreds, perhaps thousands; No. 2 is more artistic than No. 3; it is more artistic and more graceful. Q. Do vou think, from your knowledge as designer, that any one could have produced No. 3 without having first seen No. 2? _A. In my estimation it would have been an utter impossibility ; I can see that they have attempted and have transposed the figures of the one in the other, but left the configuration the same; I never saw No. 3 before I saw No. 2: I never saw anything like No. 2 until Mr. Righter invented and produced it in our place; I think I saw No. 3 first last summer; a party came into our place on Chestnut street and wanted a piece of our No. 408; this is Exhibit No. 2; we were ordered ahead upon it and could not let him have it. (¢ jected to by Mr. White, to all conversation not in the presence of the defendant.) He said he could get it at Riegel’s, on Market street: I 20 told him I did not think so, as it was a patented carpet of -ours; he said he could, and would’ bet his money on it; 1m- mediately after he left, 1] went around to Mr. Riegel’s store, and knowing the manager of the department, had a conversation with him, and saw Exhibit No. 3 in Mr. Riegel’s place; that was the first time I saw it. | No cross-examination. JOHN DORNAN. Subscribed and sworn to before me, this 8th day of July, A. D. 1875. ! | SUSSEX D. DAVIS, Examiner. | Juty 9TH, 1875. Present: Mr. Cleemann for complainants ; Mr. White for defend- ants. | Joux Witmer MartTIN, a witness called by complainants, being duly sworn, says: Examined by Mr. CLEEMANN : | am twenty-eight years old; my name is John Wilmer Martin ; [ am a salesman of carpeting ; I reside at No. 1609 Franklin street, Philadelphia ; T have been in carpets exclusively for four years and a half: I have sold them for nine years ;.I am familiar, very famil- lar, with pattern on Exhibit No. 2; I have sold a great deal of it, as 12 _ JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. much so as any pattern we have got, I guess; it has been avery suc- cessful pattern, indeed ;.1 am familiar with the pattern of Exhibit No. 5. - | Q. From your experience as a seller of carpets, do you think an ordinary purchaser would be apt to mistake Exhibit No. 3 for Ex- hibit No. 2? 2 A. I think it would be almost impossible for any one to tell them 7 apart that had not them together. 21. = Q. -~ Do you know of any instances where Exhibit No. 5 has been purchased, instead of Exhibit No. 2, by mistake? I know of quite a number, wlrere they bought No. 5 to A. Yes; take the place of No. 2. Q. Can you state, from your experience im selling It xhibit No. ye 2 has been injured by the competi- whether the sale of Exhibit No. 2 tion of Exhibit No. 3” (Objected to by Mr. White.) A. Yes; the sale has been injured in a number of instances -Cross-examined by Mr. Wurtte: a I sell goods for Dornan, Maybin & Co. and other parties on commission; | have no store or place of business; I do not sell _— erade of, goods for any one except Dornan, Maybin & Co. -*Q. Will you state vour means of knowle a that apy one bought No. 5 in place of No. 2? A. I can tell you of one instance; the party told me himself that he bought it. (). Did that a te H you he bought No. 3 to take the place of No. 2? A. Yes, sir. , Q. Was that the expression he used? If not, state what he said. A. Just as near as [ can recollect it, he had bought No. 2 of Dor- nan, Maybin & Co., but could not-get it as fast as he wanted it, and ordered No. 3 to take its place. Q. Then he was not deceived by the pattern, and did not mistake Tam not engaged positively in any house now the: one for the other A. My recollection is he did not know the diffe ‘rence until he got them together. Q. Do you mean your recollection is he told vou that 4 7 A. Yes, sir. (Objected to by Mr. White, to so much as is hearsay.) Q. Be good enough to give me the name and address of that per- son. : 22 A. J. HW. Wyman, Burlington, Iowa. : Q. When did this take place, sir? | couldn't sav positively ; that A. I think it was in seventy-fonr ; is as near as I ean fix the di ate, as I have been there frequently, and couldn't say on which occasion it was. JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL. 15 Q. Is it unusual in your business, when a man cannot get a par- ticular pattern which he wishes, to order a different pattern as near the same general stvle as he can get it ? A. No, sir. | | M. It is not unusual, is it, for merchants to send orders for car- pets, giving a general description of the sort of patterns they would like to have, such as with medallions of a certain size, and with flowers wreathed, set, or running designs? A. ‘It is the exeeption more than the rule. (). The rule, | suppose, is, that a man comes and selects the pat- tern himself, or orders from a sample; but where he cannot do this, is the other course not frequently taken ? A. Where parties have bought from seeing the sample, and want more goods, they are apt to duplicate the patterns they have by number. | : Q. That is not the question which I asked you, and I now repeat it. | A. Yes. | | Q. A large carpet house will generally have a large number of patterns which will answer a general description, such as I have in- dicated above, will they not ? , A. Some houses run all their patterns of the same general design ; some have a greater variety, more or less. (). Some make wreaths, some flowers, and so on: Is that what you mean ? : ; A. Some houses Mav have a trade for scroll patterns and small figures, and some for other designs. (. The most striking feature to an ordinary purchaser of those cheap carpets as that part of them which is in the solid color, is it not? I mean the centre pieces of the medallions. A. I don’t understand your question. 23 (). What I mean to ask you is, whether an ordinary pur- chaser, in looking at either of those carpets, would not observe most prominently, at the first glance, the solid scarlet centre pieces of the medallions? A. The searlet, being bright, would naturally attract his eye first; a man buving goods would naturally look at the whole figure; no particular color would attract him. - (Objection made to the latter part of the answer by Mr. White, as not responsive.) | } Q. The next thing that would be likely to strike an ordinary pur- chaser would be the general coloring, would it not ? A. That [and] the figure together. Q. The design of the solid scarlet centres of these carpets is not peculiar to this design, Is it? A. No; the shape of No. 3 is like that of No. 2; the solid scarlet centre is made in other figures. (Q. That is common to a large class of designs, is it not? A. Yes, sir. | 5 ee JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. The peculiarity of the design of No. 2 is in the flower, sprig, Q. and leaf part of the pattern, is it not? A. I think the peculiarity of the pattern is the pattern itself—the work of it. Q. Leaving out the solid part of which you have spoken, what else is there in the pattern, except the flower, sprig, and leaf, of which I have spoken? A. The cornucopia holding the flowers in the jewel part of the Q. Any thing e ‘Ise, except the cornucopia and the flower, leaf, and sprig part ° t A. I don’t know as there ts. Q. Now, is there any cornucopia, or anything resembling the cormmucopia, in anything but color, in pattern No. 3? A. | ~~ those roses are like the — part of the cornpenyes, ‘rather the cornucopia itself 1 'Q Do I understand you to say that the cornucopia in No. ¢) %) : ? appears anywhere in the pattern No. 5 4 ns I think it does. Where? 4 I think it is in the j jewel of No. 3. Then vou consider those two figures the same, in seit or 4 ante so far as the cornucopia Is concerned ? A. I do not say they are exactly the same, but the cornucopia in No. 21s reproduced in No. 3. °Q. Will vou look at the figure in No. 3, and say whether it is not a seroll pattern known to the trade as the letter “S’ ’ pattern, and used in many of Dobson’s best known i patterns ? A. | never heard it spoken of as the “ S” pattern in my life before. Q. Have vou seen it before in other patte rms? A. I don’t think | recollect of ever seeing the saw it in that. (). Medallion patterns, with wreaths of flowers, leaves, and vines, same thing, until I are very common, are the y not? A. They have got to be sinee this has come out. QQ. Do vou mean to be understood, that such patterns were not in use until No. 2 was put on the market ? A. There had been medallion patterns made before that, with leaves and flowers in them. @. Such patterns were made, both running and in wreaths in great variety, were they not, more especially in brussels carpets ? A. I don’t think they were at the time this carpet was designed ; since that they have been making more of that class of figures. Q. Can you point out. any similarity between those two patterns, independent of the coloring and the cornucopia, of which you have spoken, other than the general feature, that both have solid medal- lion centers, surrounded by flowers and leaves ? A. I think that’ the wreath of No. 3 produces the same effect as the wreath of No. 2. Q. You are now speaking of the medallion with the sprig and leaf pattern in the centre in No. 2, and the medallion with the star or el ght- pointed figure in No. 3? 1 EE NUS Rien Spa eta JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 15 A. I refer to the wreaths surrounding the medallions. (. Now, will you be kind enough to confine your attention to those two patterns, and say whether. you mean to be understood that the design surrounding the medallion of No. 0, above referred to, resembles .the wreath you have indicated in No. 2 in any respect, except in similarity of coloring? A. I think the general effect produced 1 in that is the same as the general effect produced i in this. Q. Can you point out similarity in the two patterns in detail which would produce the similarity of effect of which you have spoken ? A. I don’t understand the question altogether. @. I wish to know wherein you can detect any similarity in those two patterns; vour words “ general effect” are too indefinite to my mind. ; : A. Iwill show you. The sprigs around the outer edge of the medallion are the same; there are sixteen of them. (. Anything else? (Objected to by Mr. Cleeman, as irrelevant.) A. The inner wreath of leaves in No. 2 around the searlet is brought out in effect in the same place in No.3. I can specify nothing more than the general effect of the whole thing. Redirect examination by Mr. CLEEMAN: (). Is it not the almost universal custom for carpet dealers to pur- chase by sample or inspection of the goods? gouge to by Mr. White, as irrelevant and not re-examination.) A. Yes, s] 7 | oe J. W. MARTIN. Subscribed and sworn to before me, this’ 9th day of July, A. D. 1875. 26 GEORGE W. GoLDEN, being duly sworn, says: Examined by Mr. CLEEMANN : My name is George W. Golden; I am twenty-four years of age ; I reside at No. 1020 Randolph street, Philadelphia; I am book-keeper for the complainants. Q. What is your duty in reference to ticketing the goods? A. My duty is to see that every piece of goods i is ticketed properly, and where a pattern is patented to place a ticket on bearing the date and number of the patent, with the word “ patented. " The ticket on No. 2 is such a ticket. Q. Has every piece of goods bearing the pattern Exhibit No. 2 that has gone from the complainants’ mills since you, have been with them passed your inspection ; have they all been ticketed with a ticket similar to that on Exhibit 2? 1875. 16 JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. A. Yes, they have: it have been with complainants more than two years and a half. GEORGE W. GOLDEN. Sworn and subseribed before me, this 9th day of July, A. D. SUSSEX D. DAVIS, Examiner. Juty 14raH, 1875. Present: L. C. Cleemann, Esq., for complainants; R. P. White, usq., for defendants. | | THomas Drepvuy, being duly sworn, says: My name is Thomas Depuy ; [am forty vears of age; I reside at No. 1814 Park avenue; my store is No. 87 South Second street; I am a Wholesale and retail carpet dealer, principally retail; I went into that business in 1850, and was in it until 1857, and out of it until 1870, and been in it from that time until the present. ot Exhibit No. 2 shown witness. (. Are you familiar with that pattern ? A. I am. | exhibit No. 3 shown witness. Q. From your expericnee as a dealer in carpets, state whether or not an ordinary purchaser In buying a carpet would be lkely to mistake Ie xhibit No. 3-for E x hibit No. at A. In my opinion it is sate to say that not one customer in twenty- tive would know the difference. (). Do you know of any instances in which the mistake has been made ? A. Mr. Golden, the book-keeper for the house of Dornan, Maybin & Co.,stopped in at my store to get a carpet for his own use; wish- ing one ot the pattern of Exhibit No. 2, he walked up to the imita- tion or copy, and said he wanted one off of this. (Objected to by Mr. White.) Pointing to the one off of the copy, naming the 408, and I then said: “ No, I guess that is not [what] you want; it (the copy) was an extra superfine copy of the same pattern as near as I ean tell. (Objected to by Mr. White, as conversation between third partics and irrelevant.) THOMAS DEPUY. : Sworn and subscribed to before me, this llth day of July, A. D. S75. SUSSEX D. DAVIS, Rramine:, ALEXANDER W. SkItton, being duly sworn, says: [ reside at No. 604 North Thirtv-ninth street; I am. thirty-one vears old; Tam in the carpet business; [am a retail carpet seller; with a short interval, [ have been in it all my life. a JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL. Exhibit No. 2 shown witness. 28 T am familiar with the pattern. Exhibit No. 3 shown witness. [ am familiar with that also. (). From your experience as a seller of carpets, please state whether or not an ordinary purchaser, i ‘selecting a carpet, would not be likely to mistake Exhibit No. 3 for Exhibit No. 2. A. Certainly he would; I think I have mistaken it myself. (). State on what occasion ? A. When I first saw Exhibit No. 3 I took it to be the same pat- tern. | | @. Where did on it? A. At Jacob Riegel’s, on Market street; I enquired at that time if it wasnot Dornan & Maybin’s s goods, and I was told it was Dobson’s. > Cross-examined by Mr. WHITE: Q. Will you look at the two patterns now, and point out anything in the design of one which you could mistake for the design of the other? A. The general design of both of them is very near alike to me; the wreath. of ine flowers in the centre of No. 3,and the same wreath in -No. 2, is so very near alike that 1t would deceive better judges than I am; also, the wreath of heavier flowers in the centre of both of them is the same, in my view; the only difference I can see in them is the exchange of a leaf for a rose. Q. Take the first two medallions that you have referred to; 1s not the pattern of No. 2. a wreath composed exclusively of leaves of pe- culiar shape, and is not the wreath you compare with it in No. 3 a wreath of flowel rs with leaves of an entirely different shape and pattern ? A. In the first place, I] think that the wreath of No. 2 is not com- posed of twigs alone; it has a leaf and running vines; and No. 3 is composed of ‘the same thing, similar twigs, a running vine, and some small flowers put in in place of twigs. 29 (). There are no flowers, are there, in the wreath of No. 2? A. No, sir; I don’t think there are any distinctly formed Howers ? q. Are there any indistinctive forms of flowers ? A. | call those twigs and leaves, formed as they are on the wreath of No. 2, flowers. . Then you consider a leaf anda flower so nearly alike that vou would not only mistake one for the other, but knowingly call them by the same name ? A. I don’t consider anything of the kind, sir. Q. Would vou call the wreath of No. 2a wreath of flowers ora wreath of leaves ? , A. I told you before I called it a wreath of leaves, twigs, and running vines. (. Do you mean to say that that would be a correct discription of the wreath of No. 3? J—452 1s JOHN DOBSON ET ‘AL. VS. JOHN DORNAN ET AL. A. Itis, with the exe eption. of a few flowers, a twig taken out, and a flower put in. Q. Then with the exception that you have spoken of the pat- - are alike, are they, in those two figures ‘Tsay they are near enough alike to © mistaken by better irate then I am in the business. @. Will you be good chnongh to point out any object in the one pattern, which rese mbles the other in any one thing but color ? A. The size of the figure, formation of the medallion wreaths, same number of figures to a breadth. (Mr. White calls the witness’s attention to the fact that the ques- tion is directed to the resemblance of the two medallions of which we have been speaking.) : A. The general resemblance is so near alike that almost any one would mistake the one for the other. Q. Then you cannot show any detail in which the -one corresponds with the other? A. The wreath and twig and running vine which runs around the medallion of both medi ullions is so near alike that no one can tell the difference. Defendants Exhibit A shown witness. sf ee (). Be good enough to compare the same wreath.in this Ex- hibit A where the colors are different, and state whether you think any person who knows one pattern from another when he sees It, on being shown those two carpets, would be likely to suppose that the pattern was the same in both. A. Noone who is a judge of those. things would when they are compared together as now. Q. Look at the wreath in this pattern corresponding to the one in No. 3, of which we have been speaking, and say whether any one would be likely to mistake it for the same wreath in pattern No. 2, of which you have spoken. (Objected to by Mr. Cleemann.) A, If it was in the same colors I think they would be very likely to do so; most any one purchasing would do so. (). Be good enough to answer my question, Whether any one look- ing at the two wreaths in the two patterns now shown you, which are in different colors, would be at -all likely to suppose the pattern Was the same ? A. Do you mean putting them side by side? (Mr. White says you can answer the question in any way you choose and fully as you choose.) b) A. If you put them together and compare them as closely as they are there, I should say not; but separate them, and I know a great many would buy one for the other, so far as the patterns are con- cerned. | Q. Then [ understand it to be your opinion that persons seeing a JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. earpet of No. 2 and a carpet such as Exhibit B would be likely to suppose that the designs were the same and the difference was only in the color? : A. That is my opinion; the figures may be larger in Exhibit B than in Exhibit No. 3. Q. Where is your place of business ” A. No. 1115 Market street. (). In business by yourself there ° ? A. Yes, sir. Q W holesale or retail a A. Retail. A. W. SKILTON. Sworn to and suheetibed before me, this 14th day of July, A. D. 1875. SUSSEX D. DAVIS, Evaminer. (FEORGE W. GOLDEN recalled: In September, 1874, | went to Mr. Depuy’s to get a carpet with a design like Exhibit No. 2,and walking back the store I laid my hand on a piece of Exhibit No. 5, and said that was what I was looking for; but was told it was not the exact thing I was looking for, but no doubt could be given to me without my knowing any better. (Conversation objected to by Mr. Waite.) Cross-examined by Mr. White: When I laid my hand on the piece, as I have described, it was on the shelf with other carpets, rolled up in the usual way; the wrong side was out. This was in Mr. Depuvy’s store. I knew I had sent to him patterns of the carpet I wanted. I went to Mr. Depuy’s not for the purpose of selecting patterns, but to get what I had decided upon beforehand. | GEORGE W. GOLDEN. Subscribed and sworn to before me, this 14th day of July, A. D. 1875. SUSSEX D. DAVIS, Examiner. JoHN RoTHERA sworn: My age is twenty-six years: | reside in Marlborough street, near Belgrade street; [am a power-loom boss; I know the Messrs. Dornan and the Messrs. Dobson; I worked for John and James Dobson, | think, about fifteen months: I don’t know exactly ; I left them last February or March. | Exhibit No 5 shown witness. [ saw that carpet worked at the Dobson’s last summer and last winter; thev had a great many looms going at one time on it. Cross-examined by Mr. Waite: [ could not tell how many looms they had running on it; I never 20 = «JOHN DOBSON ET AL. VS. JOHN DORNAN ET AT. counted them. I cannes say how long any one loom was at work on it; they change the patterns about on the looms; I did not weave it my “self, but I fixed No. 69 loom to weave It. JOHN ROTHERA. Sworn and subscribed before me, this 16th day of July, A. D. 1575. T. E. MERCHANT, Notary Public. Exuibit No. 4. Offered in evidence, marked by examiner July 16, 1875,“ Exhibit No. 4, T. E. M., July 16, 1875.’ OFFICE OF THE FALLS OF ScHUYLKILL CARPET MILLIS, Corner of Ninth & Chestnut Streets. JOHN & JAMES Dopson, W. Orping NEwMAN. Proprietors. Manager. PHILADELPHIA, Jay 20, 1874. Merssks. DoRNAN, MAYBIN & Co. (GENTLEMEN: We have vour favor of this date, and note contents. We are not aware of infringing on any of your patterns. We, upon the previous notification, Investigated this case throughout, and found that we were not interfering with vou or vour = pattern, and can only reiterate upon what was stated to vou previously, that we are not making any carpet for which vou hold letters patent, notwithstanding the proof you say vou have at 615 Chestnut street. Yours truly, JOHN & JAMES DOBSON. d0 In the Circuit Court‘of the United States for the Eastern District of Pennsvivania. Between JoHN DorNAN and FRaNcis Maysin, Trading as Complainants, | } and JoHN Dopson and James Dopson, Defendants. Testimony taken at Philadelphia, before Sussex D. Davis, an ex- aminer appointed by said court. , FEBRUARY 2, 1876. Present: - James Dobson, one of the defendants. Richa ra p a's hite, Esq., counsel for defendants. John Dornan, L. C. Cleemann, counsel for plaintiffs. THomas FINLEY, a witness, called on the part of the defendants, being duly affirmed. Mr. White offers in evidence a drawing of his pattern, marked now S.D. D., Exhibit A,a carpet pattern marked S. D. D., Exhibit B. Witness savs:' lam in the manufacturing of jute rope and varns at present; my place of business is at No. 28 North Front street. w_ —_ YO a A SN NRE SA IRR I Co are larger than in No. 2, but not near so fine to mV taste. Q. Apart from the fact that these designs are both wreath pat- terns, with solid centres, the coloring alike, do you find any resem- blance or similarity between the two? A. — you reference to the designs, or to the flowers ? (). I refer to the whole design, A. Ido not see anything just alike in the whole patte rn. (Q). Do vou find any thine suflic jently alike, to be calculated to deceive or miustead ? : | A. It would not me; [ don’t see anvthing which could deceive or mislead me; it would be very hard for me to say whether 1t would deceive or mislead an ordinary purchaser; there are some parties who would not. be able to carry the figure in their eve or mind at all, from the one store to the other; they would not be able to Carry the design of either figure, for the reason that | have had them come from other stores to mine, and to tell that they had seen the very same figure in the store they had previously left. when I have known the design and figure, which | showed them, was the only one of the kind in Philadelphia. (). My question was as to un ordinary purchaser. A. I don’t think there is such a similarity as would deceive an ordinary purchaser. | | - Cross-examined by Mr. CLEEMANN : ). in both patte rns? : : A. The re is a great deal of similarity in the color and shading. (). Is hot the relative position ot f the drops, and the larger ugures the same 1m both Carpe ts 7 A. No. sir, 1 don’t consider the Vv are. Show me where they are different. A. The drop in No. 3 ts not Ike the drop in No. 2 at all. Q. But is not the position of the drop in No. 5 in relatien to the Ke larger figures the same as the position of the drop in No. 2 in rela- Q. Is not the arrangement of the dark and lght colors the same *) tion to the larger figures in No. 5° af ? eo Wee £2 > aT — - 2 wa? _— oo wae 6 * > a se ee > Sima. ollie Inne ee ie me“ ak ~ he x" ~ - ° a) . x A st ¥ ~~ yiqegieen - ad — 6 ‘ Samim... a e 7 eg ae ™) 4 ed . Bais! an fs 4 ate ; 3 Ao tis ay s egy et Maas a Bee . vy re ‘a : : ~ «tig Ne . t g hak 8 Fis a Ee, Bak). ¢ - A Sh P q op ae ten het be he EE: JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 23 A. Certainly. The position of the figures is the same, but the figures themselves are entirely separate and distinct. Q. Do you not think it like ly that the design on No. 31s an imi- tation of the design on No. 2? A. I would not call it such. You will see that these figures on No. 3 are entirely different from those on No. 2, and the flowers are entirely different. The design of No. 2 is far superior. THOMAS FINLEY. Sworn and subseribed before me. SUSSEX D. DAVIS. Kraminer. WittiamM T. Cernero, being duly affirmed, and examined by Mr. Wuirk, on the part of the defendants, says: I have charge of the retail carpet department of Gould & Co., at 9th and Market streets. [ have been familiar with the carpet busi- ness ten years this spri ing. I have examined the designs of Exhibits Nos. 2 and : o. (). Do you find any substantial sinnlarity between them? A. Nothing more than in the coloring. Q. Is there any such similarity between the two as would mislead an ordinary purchaser? A. There is not in my judgment. (J. Is the general arrangement of the figures or the general character of the design an unusual one, the arrangement of the medallion figures with the wreath around them ? A. It is not at the present time. Q. That is a class of patterns now in fashion ? A. There are quite a number of them. Q. Are the colors in these exhibits unusual, or are they used in all kinds of carpets ? A. They are at this time; they are used in all grades of ingrain ‘arpet at this time, and in all the different designs. (. Do you find any one in figure in No. 2 subst tantially like any one figure in No. 5? A. I do not; nothing more than in general design. Q. By general design vou mean that whole class of set figures with wreaths, am I right in that? — (Objected to by Mr. Cleemann. Question withdrawn.) Q. What do vou mean by general design ? A. The class of patterns that I would call wreath designs. Q. Is that class of designs extensively in use ? A. They are; there ; are large numbers of the patterns. WM. T. CERNEO. Sworn and subscribed before me. SUSSEX D. DAVIS, Examiner. Adjourned to March 25, 1876, at 53 o'clock, p.m 24 JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. Marcu 23, 1876, at 3} o'clock p. m. Present: L.C. Cleemann, Esq., for complainants; Robert Dornan, one of the complainants; and R. P. White, Esq., for defendants. Jounx T. Wepstrer, being duly aflirmed and examined by Mr. WHITE, says : ov [am a designer; I have followed that business over thirty years; Lam now in the employment of John and James Dobson. : ae Exhibits A and No. 1 shown witness. Iam familiar with these designs. One is Dornan’s patent and the other Dobson’s pattern, while ‘i is complained of as an infringement In this case. Q. Please state if you find any, and, if so, what, points of simi- larity between those two patterns. A. ‘The plan is the same. — Q. What do you call the plan? A. ‘The plan consists of four centres or wreaths and a drop figure; that: plan is common to both patterns. (). Is it peculiar to those patterns, or is ita plan which was in use prior to either of them; and, if so, to what extent, and how long? “A. It is hot: peculiar to those patterns. The extent of its use I could not say, but it has been in use at least ten years, to my knowl- r edge, and it may be much more. | (Q). Tlow and in what way has that been in use? iy A. It has been used by carpet manufacturers, and, also, I believe, by drugget manufacturers and ingrain car pet manufacturers; it has also been used by several minutacturers in various patterns. That applies for the time I have specified, to my knowledge. — Q. Phen, if TP understand vou, wreath patterns and drop centres have been used by the trade over ten years, to your knowledge? A. Yes, si (). Have ; ou ever prepared any design vourself of this character; and, if so, when and for whom ? A. LT have; prepared. one in S71, for Alexander Smith & Sons. Here it is, (Ma. ( ‘eemann objects to this pattern bemg offered 40 © in evidence. Pattern marked S. D. D., Exhibit D), and I | would call this the same plan as the other two. Q. Irrespective of the plan as vou define it, do you find any substantial similarity between the Dobson pattern and the one in the letters patent ? ~ A. Trrespeetive of the plan T see no substantial similarity. Q. Point out, if you please, the points of difference between them. A. In the patented design there are four centres or wreaths, each ditferent from the other; 1 the Dobson patent there are four cen- tres also, those marked as Nos. 2 and 4 being alike, and Nos. 1 and 3 also being like each other, but neither of them like any of the plaintiffs’ centres or wreaths: the drop figures are far from resem- bling each other in the two patterns. | should say in the plaintiffs’ JOHN DOBSON ET AL. VS, JOHN DORNAN ET AL. 25 pattern there is evidently a ‘representation of a group of roses, with accompanying leaves, and in defendants’ the floral part is more of the form of a wreath or spray. The other features of the drop on the defendants’ I would describe as the letter “S;” the other fea- tures of tlre plaintiffs’ I am at a loss to describe; 1t does not resemble the letter “3S.” @. It has been alle ped. in the course of this ex xamination, that the designer of the defe ndants’ pattern seems to have reversed the pat- ented design, and reproduced the substantial parts of it in different ™ positions from what they occupy in the original. Do you see any- thing of that kind in the patterns ” | A. I do not. Q. After a careful examination, can you state whether any one part of the patented design, excepting the plan as you have de- scribed, is to be found re produced in the Dobson pattern ? A. I do not find anything in the defendants’ pattern reproduced, with the exception of the plan. 4] Q. Do you find the same flower in either pattern ; if so, in what instance? A. I tind roses in both; two roses are in the defendants’ pattern, excluding the drop patterns, and in the patent I see only one, which is to be found in the lower right corner; the roses in the defendants’ pattern do not resemble at all close ly the one which appears on the . patented design. : : Q. E xcluding the roses, do you find anv leaf, spray, or flower in the defendants’ design which is a reproduction of anything 1n the complainants’ pattern?” | A. I find no re boca of any of these features in the defend- ants’ design. -Q. Are patterns, made up of wreaths and groups of flowers, com- mon or uncommon among peapel and wall paper and other similar designs. A. They are quite common, Q. Have vou ever seen carpet or wall paper designs, anything resembling the drop pattern in the plaintiffs’ design ? A. I have one here which is of similar character, it is on a wall paper; | have been familiar with that for four vears. I have had this particular piece for four years. T have also duplicates of it. Carpets were manufactured and put on the market by Alexander Smith & Sons from Exhibit D.S. D. D.., the same years that I de- signed it. “This is cut from a wall paper which 1s in use, Q. Looking at the two designs in controversy, will vou state whether in your judgment there is any such similarity between them as would deceive ordinary purchasers? A. | should think not. Cross-examined by Mr. CLEEMANN. Q. Is the drop figure an important feature in the plaintiffs’ des sign ? 42 A. Not so important as the wreaths. Q. What is its importance ? 4—482 | 26. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. A. Its importance in 1 both pos at is an intermediate figure placed at an equal distance from the centres to break the line of plain sur- face that would otherwise appear without the intervention of a drop figure. Q@. If the drop figure were omitted it would cause such a change in the figure as to make the design a different one, would it not? A. Lean hardly sup pose that a designer for carpets would leave the design in the unfinished condition in which it certainly would be without a drop figure. Q. You have seen, however, designs hav ing the same gene ral plan of wreaths that you speak of, in which the drop figure is left out, have you not? “A. Ido not recollect having seen a design in which the drop fig- ure or its equivalent was left out. (Q.] What would you call its equivalent? A. T would eall itsequivalent where a frame-work was introduced in the plan of the earpet that might: only enclose a portion of the carpet where the drop figure is presumed to be of advantage, or it might also be planned to enclose the wreaths and form connections _ of frame-work or strap-work. Q. Taking this view of the subject, is the drop figure an import- ant feature in the two designs ? A. IT have already answered that question by impliation.. Q. Please answer it now directiy. A. Yes; it is an important feature. Q. Is it of anv importance as to the coloring in preparing to weave the carpet from the design ? ‘A. The coloring of a carpet is of very great Import after it 1s de- signed. a Q. That is, is the drop figure of any importance as to the 45 ~~ coloring in pre paring to weave the carpet from the design? A. [t is. QM. What t import ince ? A. It is of importance that the coloring of the drop figure should harmonize with the coloring of the other figures and centres and the ground. QM. Does not the iradadtion of a drop figure assist the produc- tion of a more varicd effect on the coloring of a design ? A. Phat is the elfeet. intended to be produced by the introduction of drop figures. Q. Would you not then consider that there was a radical differ- ence between a design containing a drop figure and one in which it was omitted ? A. I would. se Q. There is no drop figure on Exhibit D, is there ? A. There ts, or its equivalent. Q. Would the figure which you say is equivalent toa drop figure in Exhibit D have the same effect as to allowing a greater variety of coloring as a drop figure; such as that in the design of the letters ~ patent would ? : Ss iia ered... JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. . ie A. It would have the effect of allowing as great a variety of color. Q. Is that all? That is all [ have to say | Q. I mean as to-the space between the centres ? A. It would allow such a variety, but not as great a quantity; I mean that the space occupied by the drop figure in the patent is larger than the space occupied by the drop or the equivalent-on Ex- hibit D; [would quality what I have said above that it would allow as great a varie ty of color as has been introduced into the jewel or drop figure of the letters patent. 44 Q. Have you seen the design, Exhibit D, in carpet? A. I have. | Q. In that carpet, was there as great a variety in color between the large figures as there is.in Exhibit No. 2? A. Distinguishing vellow from orange, | should say no. Q. Was there as great a contrast ? A. I don’t thoroughly understand that question. Q. In the carpet, which you saw made after Exhibit D, was there as great a contrast of color on the space between the corner figures as there is in Exhibit No. 2, in that space? A. There was. . @. You have said that the use of the drop in Exhibit No. 2 is to break the line of plain surface between the corner figures; does the figure, which you say 1s equivalent toa drop in Exhibit D, does it do the same as effec tually ? A. It does. Q. You then see no difference between the drop in No. 2 and the equivalent in Exhibit. D; 1s this so? A. I see no difference, so far as the intention to break the line is concerned. Q. Do vou see any difference, as far the intention of making a greater variety of color is concerned ? A. I do not. (. Would you be — to mistake a carpet bearing a design with a drop in it, such as that in Exhibit No. 2, with a carpet bearing the design of Exhibit 1)” A. I would not. Q. You have said that vou were familiar with the design shown on the letters patent; when did you first see that design ? A. Strictly speaking, I have not seen the design until I saw the letters pate ant. (). Well, not speaking so strictly, when did you see it? 45 A. I-saw—I couldn’t state the time, say two vears ago— a part of the patent design. = Where? . At the Falls of Schuylkill, on the premises of defendants. “ What part did you see ? : A. That is almost.more than I could particularize, but I know that we did not have the complete figure. Q. How do you know that? | 28 JOHN DOBSON ET AL. VS. JOHN DORNAN ET ATI. A. Ww ell, I know that one-half of the dons was not in our posses- s1on. : Q Did you then ure? A. We did not. Q. Did you get a piece siowiag what that lacks? A. I did not. -Q. Did the defendants get such a piece? A. Ido not know. | Q. Didn't you see such a piece ? A. I am not aware of ever having seen any other piece of plaintiffs’ ‘arpet than the piece referred and Iexhibit No. 2. (). How did ai come to see the first piece ? A. It came to my knowledge through having been left as a sam- ple. of sh: ding. Q. Who by t A. By Mr. Dean—Dickson | Dean. Q. What did he leave it for” A. For a sample of shading solely. Q. Did you use it for that purpose 1 A. I did not. Q. Who did? : 3 A. I believe Mr. Kerr—David B. Kerr-—has used it for that pur- pose. 46.8 Q. Has any person in de fendants’ employ used it for that - purpose ? A. None that Iam aware of, other than he. (J. ‘Is he in their employ as at designer t eet noe piece which showed the whole fig- A. No. re Has he been ” No. Q Has he ever been in their employ ? A. I have said above he was, but not as a designer. Q. How was he emploved by them ? A. You ask me more than I can tell. Q. Why then have you said that he was in their employ ? A. LT conelude that being on the premises myself during what are regarded as working hours, and see ing Mr. Kerr there also on the premises, that he was in their employ. Q. Did you ever see him do any work there? A. Yes. (). What have vou seen him do? A. Lhave seen him do various work; writing in books, and [ presume he has many things to attend to besid s, and I believe at- tending to the shading of the carpets; | have seen him do many things required of a weaver, or a superintendent of weavers. Q. You have said that vou saw Kerr use plaintiffs’ design for shading colors, have vou not ? | : -£ ie ave not said so. Q. What did vou say in reference.to Kerr and this design ? A. Your question indicated I had seen him use it. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 29 A. Ido not recollect exactly; I do not think I said anything ubout his using the design for shading carpets. Q. Repeated. A. I ‘3 ave no re collection of having said anvthing about Kerr and this design; my recollection is that I said it had 47 been left for shading purposes by Mr. Dean, I mean the piece of carpet was left? (. Is this the piece you saw? A. Lam sure I can’t tell. (Piece marked §. D. D., Exhibit FE...) Q. Was it like that? A. So much as I had was hike it. q. Didn’t you have as much as that? A. | did not. | Q. Can vou indicate how much vou did have? A. As near‘as I can indicate I did not have a piece larger than sixteen or eighteen inches. Q. Can you show what portion of this vou had by marking a line on it. (Mr. Cleemann requests the witness to mark out on Exhibit E a line, showing how much he had on the oceasion when Mr. Dean left it.) | (Mr. White objects; that there is no such exhibit in the case; that this is not cross-examination.) Mr. Cleemann requests the witness to mark out on Exhibit No. 2, so much of the cloth as Mr. Dean left, and he saw. A. I cannot be definite enough to make a mark stating the limits of the part of the pattern Mr. Dean left. (). Was any portion of the drop in it? A. There was. Q. Which portion ? A. I don’t know which it is; it is the upper portion as it appears on the letters patent. | ; Q. As much as‘half of it? A. About a half, or near half; rather under than over a half. (). Ilow much of the centre figure was there? 48 A. There were only parts of two centres; rather more than one-half of the two upper centres, that is my Impression. Q. Why do vou think Mr. Kerr used the piece you have de- scribed for shading ¢ arpets ¢ A. Because I have seen carpets shad ‘din that way in the defend- ants’ place. Q. Have vou seen the defendants’ carpets shaded that way ? A. I be lie ‘ve T have. (). Do vou make the design for defendants’ carpet ? A. I controlled the making of it. Q. What part did you do? A. I made the drop. 3) = «JOHN DOBSON ET. AL. VS. JOHN DORNAN ET AL. Q. Had you seen the piec e of defendants’ carpet you spoke of, be fore you made the drop ? A. I did. Q. Did you have it o fore vou when you made the drop ” A. I did not. Q. Who made the center pieces ? A. They were made under my -direction by one of my assistants, John A. Gray. Q. Is he in the city now” A. He is not. : (). You had seen this piece of the plaintiffs’ carpet you speak of before the centres were taade, Is it not so? A. Yes. Q. Was this piece that Mr. Dean brought in the same colors as No. § 2 A. y es, the samne volor, | believe. QQ. Had vou any other person who assisted you in ge tting this de- sign up? A. Nobody. @. Do vou know where that piece is ? | - [ do not. 49 Where was it the last time you saw it? Xx [ think it was in the weaving-room. (). Was it ever in the designing-room * ? A. it was. . Q. The designing-room is your room ? A. It is the one I take charge of. . Q. Was it in there when you designed the defendants’ patterns ? A. I wish to correct the word “ room”: T had a number of rooms; it Was in there. Q. Where were these designing-rooms you speak of ? A. At that time they were in the fourth stor y of defendants’ car- pet mill. : Q. Do vou think vou could find that piece of carpet ? A. Ido not think I could; T have inquired for it frequently. I have not seen it for two vears. Q. Do you know whether or not it has been destroyed? “A. IT do not. -Q. In whose possession was 1t when vou last saw it? A. I think, but am not positive, it was in the weaving room of defendants, and under the control of Mr. Kerr. Q. Do vou know what it was used for then ” A. T know of no further use than for shading purposes. (Mr. Cleemann calls upon the defendants to produce the piece of carpet: alluded to by this Witness as having been left by Mr. Dean.) ? ~ Re-examined by Mr. Wirtrre: Q. Is it not the custom amongst manufacturers to Keep a large eol- leetion of ok ls and ends ot Carpe ts to show coloring T (Objected to by Mr. Cleemann.) JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 3] A. It is; that is the case | 50 Q. W hen customers order quantities of particular patterns ! is it usual to let them indicate from these odds and ends what colors they desire to have them in? (Objected to by Mr. Cleemann.) A. It is. Q. Is it uncommon for customers, when ordering carpet of a par- ticular pattern, to send a scrap of other goods to show the colors they would prefer to have what they order woven in” : A. It is a common proceeding. Q. Was that what you meant by shading ? (Objected to by Mr. Cleemann. Question withdrawn.) Cross-examined by Mr. CLEEMANN: Q. Is it usual to keep these pieces in the designing-room ? A. It is in some factories. (. How is it with the defendants ? A. It is not now the custom with the defendants*to keep those in- grain samples in the designing-room. Q. When was it their custom ? A. I don’t think that these pieces of carpets have been any of them stored or kept 1 in the designing-room for nearly three years. j Q. Why was the custom changed ‘ ? \ A. The distance between the ‘designing- -room and the shading- room, to whom they are more useful, makes it inconvenient to the shader. (). Previous to then years ago it was the custom of the defendants to keep these pieces in the designing-room, is that so? A. It was. | Q. What change has been made in the situation of the designing- room in the last three years? A. It is in a building independent of the main building. o1 QQ. Before the change of the designing-room, was it the custom .of the de fendants to let their customers come in the designing-room to order carpets ? A. It was not the custom. Q. Why, then, were these pieces kept in the designing-room ? A. Because the shader and the designer are so intimate ‘ly related in their business that they are generally placed near each other. Q. Were the shading-room and designing-room near each other * when you got up the de fendants’ design ? A. They were in the same building, two floors apart. Q. Which was up stairs. A. The designing-room. JOHN T. WEBSTER. Sworn and subscribed before me. SUSSEX T. DAVIS, Examiner. Adjourned to March 27th, 1876, at 33 o’clock p. m. eid JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. | Marcu 271TH, 1876, at 33 o'clock p.m. Present.: L. C. Cleemann, Esq., for complainants ; Robert Dornan, one of the complainants. Mr. White, of counsel for defendants, not being present, adjourned. SUSSEX D. DAVIS. Hraminer. a2 And afterwards, to wit, on the 25th day of April, A. D. 1876, this cause came on for argument on pleadings and proofs, and having been argued by counsel for the respective parties, the court entered the following decree to wit: PF AS ROR OTRO eee ar April 25th, 1876. This case came on to be heard on the p slead- : Ings and proots, and was aggre ed b ¥ COUNSE ‘lforthe 1 respec tive partie S, : and thereupon, upon consideration thereof, itis ordered, adjudged,and — ; decreed that letters patent for a design for a carpet pattern, No. 6822, : dated August loth 1S75, b pak to Messrs. Dornan, Maybin NX Co., : assignees of Charles A. Righter,is a good and valid patent, being the pattern referred to in aC A bill, and that the said Charles A. Righter was the first and original inventor of the design. described and claimed in the letters patent, and also that the said defendants, John Dobson and James Dobson, have infringed upon the said pat- ent, and theexclusive rights of the complainants unde rthesame; and it is further ordered, adjudge 143, ad, 444. Jus Gas, (is, (i, (és, ie), i, io), £0. ae ree|—: | Mr. Dobson states that in IS75 and 1874 thev did not sell their varn at‘the market value, beeause of a combination of the carpet manufacturers of Philade Iphit to buy varns elsewhere, as we were about competing with them in making carpets, and they would not buy our yarn unless we sold it cheaper than elsewhere. The com- bination was formed, | think, in 1873, or early in 1874; a meeting of the carpet manufacturers was called for the purposs-our heav iest customers Were In it. RoBpert DOoRNAN re-examined: Q. [low much less profit did vou make in 1875 than in 1874 on the carpet in question per yard? : ET AL. VS. JOHN DORNAN ET AL, JOHN DOBSON gore to by Mr. White as irrelevant.) . The profit on the carpet in 1875 w as about three cents per yard less than in 1874. 89 @. How. much would a yard of carpet weigh in which the double reel ran 65 vards to the ounce? A. That would depend on how much the’varn wasted inthe scour- ing and what the weight of the worsted chain would be; basing the shrinkage of the double reel at 14 per cent.,and allowing 6 ounces of cleaned worsted to the yard, a yard of carpet, when finished, would not weigh over I8 ounces Cross-examined |} by Mr. WHite: Q. You said before, I believe, that you could not givethe exact cost of your carpet or the exact profit made upon it ? A. I did give a computation of the cost as I could possibly get at it, or as near as anybody could. Q. Did I not understand you to say, sir, that was merely an esti- mate, and that you could not undertake to give exact figures ? A. I stated that it was impossible for anybody to give the exact cost of a yard of carpet, but, after consulting our books, | made a statement of the cost, which is as near right as anybody could make it, there are so many contingencies that are merged into the cost ofa single yard. I will say, further, that [ hold that it is impossible for anybody to give an estimate of the cost that may not be astray a frac- tion of a cent over or under. @. You have said that your estimate was based upon an examin- ation of your books; will you please state exactly in what way you get the cost of a vard of carpet from your books ? A. I had recourse to the books to find the specifie cost of the mate- rials entering into the carpets at specific times, to which cost 1 added the manufacturing expense, in determining the cost of the fabric. Q. Did you make or purchase the yarn you put into these car- pets ? A. We did both. 9() Q. Please state which of your books you consulted, and to what entries you referred for the cost of the yarn which you used in manufacturing this carpet. A. The book consulted was the invoice-book, and the items were the items of purchases for 1574. Q. Did that show the cost of the varn made by you? A. No, sir; the computation of the cost was mi: ade up from the cost of the purchased > yarn, taking that as a basis. Q. Whom were these yarns purchased from? A. I can only tell by consulting the inveice-book, largely though from the “Abbott whe orsted Company,” Graniteville, Mass., and other . Q. Did you use e that varn exclusively in the manufacture of any of this carpet? A. No, sir; there was a cheaper varn that actually went into the carpet ; but my computation did not include that cheaper class of yarn. | 56° JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. Q.. Uad _— not to use your own better yarn with the “Abbott yarn’? : A. Our yarn did not cost any more than what we bought of the Abbott Worsted Company, as I judge they made a profit on the ) "arn we bought. QJ. Question repeated, A. We did use our yarn with the Abbott yarn. (). In What proportions ? A. I can’t say ; we used most of ourown. Formerly we had made the same quality.of carpets entirely of the “Abbott yarn.” (). When did you hake carpets of Abbott Varn exclusively ¢ A. Lean’t give the exact time, but it was prior to our doing our owl spinning. ; QJ. Please give the time as near as possible. A. I can't say positively, but as near as I can remember it was in 1871 or 1572 that we begin to spin our own yarn. Prior to that we used the Abbott yarn exclusively. Pe 91 QQ. It was the price of the “Abbott” yarn on which you said | you made your calculation ? -A. Abbott and othe rs, | said. | (. Now, sir, what is the market value of your own yarn as com- pared with the Abbott varn ? A. At that time our yarn was a better yarn and was probably worth, inthe market, 23 cents per pound more. Q. Did you use the Bigelow yarn in this carpet ? A.. We did not use any of 1t in this carpet. Q. [fT understand you, you estimated the yarn at the prices you Jr uid ; will Vou How state how you arrived at the iInanutfacturing CX- perises ? A. Larrived at it by computing all the items of expense and the waste, Warping, Winding, spooling, finishing, Ke. Q. Is there any where upon your books any memorandum or any og in of getting at the cost of a vard of carpet ? The cost of a yard of carpet from our books can only be de- te as | have given it; there are no means by which we can determine the exact cost, as I have betore stated. Q. Then you took. what you were paying for the materials and what you were paying for the manufacturing expenses, and made the best guess vou could at the cost per yard ? | A. | made no guess whatever as to the cost; my calculation is as nearly accurate as anybody can make it who is engaged in the busi- ness. QQ. In sbedasne the cost, did you calculate the 2} cents extra which you say your yarn is worth over what you bought? A. I have said that the calculation was based on the price of yarn whichwe bought,and that our own yarn did not cost more than what we bought. The reason we bought varn was that we did not at all times make suflicient of our own. Do your books show the cost of your own yarn, or is that also an estimate ? Y2 A. The books do not show the cost of the yarn. It is in the JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. = 557 power of a manufacturer who understands his business to es- timate the cost of varn or carpet within a fraction of the actual cost; and it is my business to buy the wools and to contract for the spin- ning of the yarns, so that Iam competent to speak of the cost. Q. Have you no computation on your books of the cost of yarn * prior to its going into the carpets? A. No, sir; excepting the general estimate that is always made— up, taking into consideration the cost of wool and its shrinkage, and the cost of its spinning. I would say that we are not in the busi- ness of selling yarn,.and, therefore, it is not so necessary to make an estimate. . | Q. Don’t you make any entry of the wool when it is given out to be spun ? | A. We have a. deliv ery-book, in which we mark the wool which goes out to the spinner. Q. Have you not an entry which shows the amount of yarn you get back for the wool? A. Most assuredly we have—in a book, in which we give the spin- ner credit for the yarn returned. (. Are those the only entries which you make of the yarn before it is put in the carpet? A. Yes, sir. : : Q. Be good enough to tell me how you came at the diminution of about 3 cents profit per yard in 1875 from 1874? A. By the difference in the cost of the material. Q. You have not explained how you arrived at that reduction. A. I made a computation for 1875 as I had done for 1874, and had it ata — meeting, but it was not desired. I can make it again. Q. Just state what books you used in siekinge this computa- tion? 93: A. I have stated that I used the invoice-book for the cost of the materials, and the wages-book and the pay-roll to determine the cost of manufacture. Q. Please produce at the next meeting the computations for both years of 1874 and 1575. Adjourned to Tuesday, July 10, 1877, 3 p. m. | Juty 10, 1877. Cross-examination of Mr. Ropert DoRNAN continued: Mr. Dornan produced a paper marked “Exhibit E,” containing the computations for the years 1874 and 1875, called for by Mr. White at the last meeting. Q. Is the price which you give here—4} cents per ounce for Ab- bott—what vou gave during the whole vear 1874? A. It is the average. [ ascertained the aver age by taking the total invoices, the, different prices for the year, and averaging them. QQ. Did vou purchase this varn ready for weaving? A. The yarn had to be scoured and dyed before weaving. I pur- chased it in the grease. . S—482 58 | JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. Q. What did it cost you in the grease? A. The average cost in the grease was 633 cents per pound. (. Then in the price you give here, (i xhibit E,) vou state, not the average of what you | ought it at, but vour estimate of what it cost you. atte reyou dye d and scoure «lit and deducted the waste from it. | A. The price has those deductions in that statement. 1 mean that those matters are added to the cost in the statement rendered. Q. The allowances for shrinkage and dyeing are a matter of esti- mate with you, are they not? : A. They are a matter of fact, though the item of shrink- D4 age varies a trifle, probably one per cent. The shrinkages estimated there are ai ur average. (). Be ood enough LO CLIVE ine a direct answer , Whether the allow- ance for shrink age and dyeing is, or is not, an estimate? A. To the best of my knowledge it is an actual estimate of the shrinkage; I mean the actual amount of shrinkage, and the actual cost os dyeing. | Q. Now, if you have any means of getting from vour books the ahtead amount of shrinkage and the schont cost of dyeing other- wise than by estimating it, please state how it 1s done, and which of your books will show it? A. Our dyeing book will show theactual loss on the yarn, but the different makes of yarn are not-particularized. The cost of dyeing Is ascertained by taking the jobber’s prices for dyeing the different colors entering into this ¢: a @ in question : 10 cents per pound for the scarlet, 3 cents per pound for the white, five cents per pound for the other colors. These are the prices for dyeing the filling; the worsted is the same, with the exception of the scarlet, which 1s 9 cents, instead of 10 cents. Q. Does your yarn book ‘show what particular yarn was used in this special carpet, and your loss upon it, as distinct from your other business? | A. No, sir; the yarn was in eeneral use In all the patterns. (). [low many sorts and makes of-varn did you use in those two vears, 1874 and 1875” A. We used various sorts, to wit, worsted, double-reel white filling and single grey filling; Eeannot specify the makes—there were a number. T can mention “ Abbott Worsted,” “Saxonville Worsted,’ “Abhott Double-Reel,” our own make of “ Double Reel,” and Job Batty “Single Grey.” There may have been others, but Iam not | positive. | | 95 (). Is there not a considerable variance in the shrinkage and loss ipon these different varieties of varh f A. Yes, sir, there is. i : : Q. Do you still persist in saving that you took the actual loss of aste and cost of dveing. and not an estimate of what vou consid- at it to be? = | do. _ Tf you used these different varieties of varn,and there was a va- riance as to the shrinkage on each, and your yarn book did not keep Pe ek cals Mag ege nge, aS JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 59 any separate account of the different kinds, will-you be good enough to tell us how you’ got at the actual shrinkage of the yarn used in these carpets ? A. I stated that the different sorts of yarn varied in shrinkage. The same make of worsted will nearly always shrink the same, and the same is true of double-reel and single grey. The varn book shows the varieties, though not the different makes, and the shrink- age given is made up of the actual losses on those yarns, without re- gard to who made them. Mr. White repeats his last question. A. I cannot answer the question more plainly ; the answer is fully as plain as the question. (). Now, what is the difference 1 in price between the New England varn and the Abbott yarn * : A. I presume | you mean the Saxonville yarn. (Mr. White says “ves.”) The Saxonville yarn cost. us 5} cents per pound less than the average cost of the “ Abbott yarn.’ (. Ilow many ounces of the Saxonville yarn would it take to make a vard of this extra super carpet ? 3 A. We never used it alone in this carpet, but | should say that six ounces of dyed worsted would be adequate for a yard. Q. Be good enough to tell us what you paid | a pound for that Sax- onville yarn. © A. I am not absolutely ie but nearly so, that it was 58 96 cents per pound. “We made but one purchase in the year 1874; I can produce the invoice. I can only state from memory that the purchase was in 1874. That yarn was bought on three months’ time. (. How many picks to the inch do you put in your ae ? A. Thirteen pairs, or twenty-six picks. Q. What makes of double-reel filling did you use in this carpet? A. Abbott double reel and our own make. (). Can you tell us how much of each you used ? A. Most largely our own; I cannot give the exact amounts. We only bought the Abbott to eke out when we were short of our own. Q. The third item in your statement is: “ The cost of manufac- ture, including wear and tear, fifteen cents.” Is that an estimate, or is it the actual cost as ascertained from your books? A. It is both, in part. The weaving is taken from the books and the other part is estimated. The part for the loom-fixer, the ma- chinist, winding, spooling, and finishing are estimated. It 1s impos- sible for any body to get at the exact cost of those items. Q. What was the cost of weay ing which you allowed? A. I think it was seven cents per yard in 1874, and six cents in 1875. | : (). Are these the actual cost in those vears ? A. If the amounts given are right, they are the actual not esti- mated cost. (). Were these carpets all woven by steam-power? - A. No, sir; they were not—some by hand and some by power. FEET ELIE ELEM BE ater n 0 tc NRE NEE LE ce ET 60 JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL. ‘S What did vou pay for hand we aving ? A. Tam not positiv e, as I have not consulted our w ages-book for the hand weaving. 97 Q. How came you then to state that the figures you gave us were the actual cost for the making of this carpet, when it appears that you have not consulted your books for one of the ele- ments of it ? A. The figures that I have given are the actual figures so far as they apply to the power-loom weaving. The difference in the cost of weaving by hand would be fully offset by the difference in the cost of the single grey filling entering Into the manufacture of this carpet, Which lias not been computed in the statement. Q. Do you net use the same materials in your power-looms as in your hand- looms ? A. Yes, sir; precisely. Q. Now, as a carpet manufacturer of many years’ standing, do you say you cannot give us the difference in cost of hand weay Ing and power-loom weaving In your own goods ? A. I can only do it to- ‘day from recollection. (). Please do so? : ; A. As near as I can, I should say two cents a yard more for hand than power weaving in 1874. There are elements of cost In power- loom production that do not enter into hand weaving; | allude to -loom-fixers’ wages, mechinists’ wages, and a decreased wear and tear in hand weaving. Q. Now state, if you please, what you paid per yard in 1874 and - 1875 for power weaving and for hi ind weaving ? ' A. [ ean only answer upon referring to my books, to be accurate. q ae Tell us what you are paying. to-d: ay for hand and for power 1 aving ? | ae Six cents by power, and fourteen cents by hand. | Q. Has there been any marked difference in the proportions from | the vears 1874 and 1S875-and the present time ”? | A. I think the prices in 1874 were seven cents for power and four- teen bv hand, as near as I can remember. 98 ~Q. Can you tell us what proportion of this carpet was made : by hand and what by power: A. IT can only be accur ite by referring to the books; I think by t far the largest portion was made by power. My books will show. Q. The next item you mention is “designing.” What have you allowed for designing, and how do you get at it? | A. Designing is wer st into the wages, and it was impossible for me to get at the actual cost for a single vard, I therefore estimated the cost per vard of the several items of designing, spooling, wind- ing, finishing, and wear and tear. My cost of the manufacture is above the defendants’ estimated cost. Q. Please give us wliat you allowed for the respective items men- tioned. A. I have stated before they were lumpe «d together and estimated. Q. Then you can’t give us an intelligent estimate as to what pro- JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL, 61 portion of this “fifteen cents” was allowed for either one of those items ? | A. No, sir; it would be impossible to give it accurately or other- wise. Q. Don’t you know what the winding costs for a yard of carpet ? A. No, sir; nor does anybody; nor “the spooling, accurately. I can give approximate estimates of them all as follows: Spooling, } of a cent a yard. Winding, one cent " Loom fixing, two cents Pickers, one cent Machinist, one cent Designing and card cutting, one-half cent a vard. Wear and tear, one cent. Finishing, wae hall cent. 9Y Q. Now, Mr. Dornan, how do vou get at the amount of designing and card-cutting ? A. By estimating. We pay our designer $1,200 per annum; in addition to that, we pay for cards, and for cutting we pay a hand six dollars per week. I don’t know what the papers cost, my esti- mate was merely a guess. Q. About how many yards of carpet do vou make in a vear? A. We have varied, in different vears, from 2,500 to 3,500 pieces, averaging 120 yards a piece. [| think we made about, or over, 3,000 pieces in 1874 and in 1875; rather more in 1874 than 1875; they were fair years. IT think, in 1871, we made as high as 4,000 pieces ; that was a verd good vear. We made about 2,500 pieces in 1876; we will make more this vear; probably 3,000 pieces this vear. (). [low many pe itterns did you introduce in 1874 and 1875? A. Tcannot say; a large number, though. It is our custom to bring out new patterns every season. Q. Do you use any patterns other than those of your own design- ers; do vou ever buy any patterns? A. No, sir. We possibly may have bought one or two in the past 5 years: we bought one or two from a Fre nehman, who came over here with sketches. — Q. Why did vou make that exception to your sonia rule? A. Probably because we thought there was merit in the design. (). What is the most vou have ever paid for a design for this class of carpet ? A. I think we have never paid over $20, and have paid as low as $10. Werun some patterns one season, some two, some Many Vvears. The “ Henry Clay” pattern has run since before I was born, and the “Eagle Head” is another old stand-ly 100 Re-examined by Mr. CLEEMANN: Q. Many designs that are produced are worthless, are they not ? A. Many are not worth the pz iper thev are designed on. Q. Now, sir, you have said that in estimating the cost of manu- . JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. facture of carpet you can’t give the actual cost of many of the items that go to make the entire cost, but are mere estimates. How far do these éstimates vary from the true cost; I mean what is the greatest possible variation in these estimates ? A. They might possibly vary ten per cent. on each item, more or . le ‘SS. | es Voi lass nae that vour profit on a yard of carpet was 15 cents 11874. Now, within what limits is this true? oe a is.as nearly true as it was possible for me to make, taking the amount of money made in the vear, putting 1t into percentage | on the amount of business done. Another way of estimating 1t was, taking the cost of the fabrie, and taking the difference between the S selling price and the cost, less seven eents per yard, which amount covered interest on capital, bad debts, and depreciation of machin- ery. The fifteen cents given by me is within one-half cent of being accurate either one way or the other. WHITE: Ror ss-e XH ENed hy Mir. Q. You refer, Mr. Dornan, to the sclling price of your goods; you { have stated that vou had two grades, “super” and “ extra-super ;” was the price the same for those grades Irrespective of pattern ? A. ¥-es, sir. Adjourned to lth September, 1877. LO] ge iMxuipir A. Name of Purehasers. No. of vds, Price per vd. Total. INS? : : eb. it. Hiei. dawiter a Co... Los 1 OO 119 25 IS. " ‘ .. 1164 L 00 116 50 23. a ac twece ree 1 Oo 111 50 44, Foster Bros. et ] Q23 LIS 90 oF. & NN. & H.W. Foster... Ti3 l O25 115 S? Mar. [. -lield. Leiter & Co, Le a 1143 1 OO 114 50 LQ, . Joh ene OCR 1 O0 108 50 1] oe iene Se 1 00 105 50 i ores bavah WX ee 1133 1 023. 116 33 17. Field, Ls titer @ 0. ci EE L 00 111 50 LS. eens See 1 a0 112 50 ye [lager Bros. ; wats ti to ae Ak ie ak lags l Of 111 SU 25. Field, Leiter & Ree 1. eS 1 00 LOS OO : vg ae ce ae 107 1 OO 107 OO 7 ; Apri i. at aes 112 100 112 00 a 4 pew ge a eee 1 OO 107 OO be a a a LOG lL OO 106 OO S. . Gaages: Renee L 00 106 50 ii: aes . 2123 1 00 212 50 Lt. pc ke 1 O00 116.50 iS. A. 1 Stewart @ lo... ie 1 00 115 00 Kielad, Leiter "aL Os ASR cee TRE 1 oo 227 OO 1 OO 109 OO JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL. 63 Name of Purchasers. No. of vds. Price per yd. Total. 1874. , | April 22. A.T. Stewart & Co._--......- 1153 1 00 115 50 A 24. Field, Leiter & Co.---------- 105} 1 00 105 50 F 205. a ae aera a 2173 1 00 217. 50 “ ALT. Biowant & Co........ 25. 1064 1 00 106 50 28. Field, Leiter & Co._.--------- 1073 1 00 107 50 29. as at ine Viento 109} 1s «00 109 50 102 20. Lord & Taylor.......-..-. 116 1 00 116 00 0. A. T: & Co... I 7 “ Field, Leiter & Co.__-- tan OOM 1 00 99 50 May 1. ae Sdtecsewiia cis 103] 1 00 103 50 | 4. A. T. Stewart & Co._.----- . Wield. Letter @& Ue. .... 3... 1103 1 OO 110 50 a fe i: ‘nacne es ee 1 00 112 00 13 ‘ SRE 1 00 110 OO AG. BUA OC es ke, 108 1 00 108 00 Sh: MO Ge Oc 1123 1 00 112 50 15. Adains, Mansur & Co.__---- 1123 1 00 112 50 15. Adams & Meldrum_-_------ 1073 1 00 107 350 | 16. Field, Leiter & Co..--..--- 3183 100 318 50 a >. | 1D. J, Rewme &@ Co... Te 1 00 122 00 | 3 20. Schwartz & Graff___........ 204} 1 00 204 50 4 7 24. Brea, tener & Co... .... LOS 1 00 108 00 A ee ae Oe OA a cence Yo 1 OO Yo oO i@ 23. Field, Leiter & Co.__-- ~~ me 1 00 111 00 ¥ 25. Marrett, Bailey & Co._--_-.. 106} 1 00 106 50 ‘ . Oe a ae ~ kaa 1 00 122 50 | 26. H. B. Weber & Co... -_- Barris, Chipman & Co. ....... 11542 Aug. 1. Artman, Treichler & Co. Ss i L. rh Caen | : D. * aver 1183 7. John Turnball, Jr., & Co. - 1183 * (leo, ©. Boeviieon, 2... 113} 10. Artman, Treichler & Co.._.. 1163 * Pevynemain & Co...0. ...... 2A 12. Adams, Mansur & Co.. .._... 116 oa. i Frac. 8. iS, On fi ee ce ce L173 = S. Freediaan & BPs. oo o£ 17. Marrett, Bailey & Co...._-_.. 2003 18. Artman, Treichler & Co.-._.. 1114 ‘ rt, Pret... Ce | 21. #3. B. Clatin & Ce... 21. Bullene, Moore & Emerys_.-. 226} jl 22. Artman, Treichier & Co... _. 233 : 5, zs a ee ‘35, B. Weeder © (Uo... 2.5 2a 27. Field, Leiter & Co.- eee ae Sept Harris, Chipman & Co._..._. 115 ae e Pie. taeiter@ Co. 2... 2 Bis ie i. 4h, O21 O0- OQ OD 00 Ov) 00 OO Q2} )- 00 OO OD 00 ()() OO O] OO (i) OO Ov) 00) OW) ()] 00) O00 OW) “00 (4) QQ?! OO. O0 OO OO fpeecth pemnmh prmmmh bessech, femme fees fem femeesch beceeh femme fed 246 115 + AG? 134 OSS AGT 118 121 119 116 254 11S 125 oe o- e —_ J os te “Ibo to bo WWE Rehm Nme hei cael . at oo ~Noof yds. Price per yd. Total. OO OO 5U oO 50 OO oO 45 18 oO Q () ° OO ov 9 oO 0 15 50 oO OO OQ 24 OO 0) () 9—482 Names of purchasers. 1874 | | Oct. 8. Artman, Treichler & Co. ___- 119 9. Harris, Chipman & Co..-.--- 2 2393 3. George QO. Robinson ..------ 117}. 16. Harris, Chipman & Co...-.... 120 27. Geo. O. Robinson ~_-.-~---- 107 Nov. 2. Reeve L. Knight -_---.----. 116: 5. George O. Robinson __-- ---- 106 D. Harris, ( ‘hipman rg © meaner -1103 So ee 1153 Dee. 19. Hitchins Bros. & Schaffer _.. 95 20. 2; meet OO. on ne ce 109 1875. Jan’y | Abbott & I ie anes 440) 1. heeas tibea kG ee O49 105 | | 1. Hood, Bonbright & Co.------ 2553 ‘« Ivins, Deitz & Magee__------ 117} "2 2 Se me ie... 106 " BC @ Ue. cs... Jace 2. Hood, Bonbright & Co._----- 2343 “Ivins, Deitz & Magee. -_---~--- dO} “ 34; B. Cian @ Ce... cs 119 6. ee 106 é. a . 112 9. Field, Leiter & Co...--...--- 440 12 ‘a ae “ H.B. Claflin & Co. .......... 100} “ Field, Later & Co... ...... 2... 40 15. BH. B Claflin @ Co... cu See “:° Field, Leiter & Cou...3. 104 “ 2. B. Claihn & Cou... ne 110 15. Ivins, Deitz & Magee__-_---. 2423 . 56. FL B. Ciafiin @& Co... 0a 1173 “ ee 1093 18. " adie ee EO. SOT Ba TE i cw sens 100 © #8. B Cwais & Cs cis 1183 20. bag ee sispuia 1173 A i ees sie ecw moe: ae 25. eae a ee 117 23. Field, Leiter & Co.........-. 121} "ee ee Gen & Co. 1173 25 > é. William Graham... 110 & Waker YO... occ ca eee “J. Baron cage amma gi : 1103 8. J. M. Spratt & Co... sei ae * OW. . Mem miret..... oc .. 118} 9. Potter, Buckber & Co._____- . 107 . Artman, Dillinger & Co. ---- 1193 “Field, Leiter te. 2a 1193 11 acini ee s Mc ‘arland, Collins & Co.-__- 122 DR. Ww inebrenner Heetigant 1143 ia. @ Crouse & (oe... 220 * aeeria SOaW...... 2c... 2174 13. Artman, Dillinger & Co..... 2364 is Micid. Letter & Co... 2341 19. Marshall Bros.............. 233} 20. Wood, Worrell & Co..----- ~~ 103} 20. John Mathias_.............. 1163 20. Field, Leiter & Co..........- doS8s oe ©, ©. Soromeap.. . 1153 30. C..L. MeLain & Bro...__.___ 113 2. Field, Leiter RO. cen 1163 Re 113503 dice es. 1173 6. kc Gay me. 2k ee 6. wc Brown... 2283 18. Fahnestock Bros. _....--...- 114 17. Fieid, Leiter & Co.__....._.. 2214 19. he em RE D093 27. unin suai e 2323 No. of vds. VS. JOHN DORNAN ET AL. Price per 90 90 90 90 90 90 24 90) 923 G2 Q() 923 Q() yd. Total. 106 65 314 10 210 15 — 200 70 104 85d 104 40 102 67 102. 60 112 85 114 24 101 70 112 8d 413 55 114 $ 104 104 99 101 75 102 2 109 106 96 30 107 50 107 55 Q) 90 109 105 91 198 195 75 212 8d 211 210 95 73 107 76 32? 109 73 104 52 104 1,019 105 75 9S 205 65 105° 199 497 7 209 97 108 June July Aug. JOHN DOBSON ET AL. VS. JOHN DORNAN ET AL, | Names of purchasers. 1. Field, Leiter & Co.--------- 1191 3. ao eens 5504 4 oS eee 113 “ Artman, Treichler & Co____- 112 “ Ivins, Dietz & Magee. ..----- 107 10. Field, Leiter & Co.---------- 1103 12. OG! OS eugene a 1192 13 “ inci bie Se William Davenport—_--- ~~~ - 121 ‘“ —Artman, Dillinger & Co.__--~- 1163 -14, Field, Letter & Co... ---. 1043 18. Jacob Reigel & Co.------2--- 119 “ Field, Leiter & Co..........- 106} a. inti ee 20. David SRAW noon cess SEE 22. Field, Leiter & Co..--.-.---- 1253 24. Ivins, Dietz & Magee.--.---- 105 “~ Field, Leiter & Co.......-... 2303 25. Adams, Mansur & Co... __~- ~ 104 26. Field, Leiter & Co..------ ... 1163 28 ! ” ee ee 117 29. Field, Leiter & Co. -.------- 110} 1. a ee rea 117 4. Artman, Dillinger & Co_--. 1193 16. Harbour & Dittman____---- 1183 1. Harris, Chipman & Co.---_ 2543 1. Field, Leiter & Co. ~~ ---2--- 590 1. Harris, Chipman & Co._-~- 4613 1. . aa 100% 1. H. B. Claflin & Co........... 103} 1. Field, Leiter & Co......--_- 103) 1. Harris, Chipman & Co._~—- -. 2303 9. H. B. Claflin & Co........... 2284 “ Marrett, Bailey & Co..------_ 110 10. John Shillito & Co.-_---~-- SYS * Harris, Chipman & Co..____- 104} 13. John Shillito & Co.-------. 108 14. H. B. Claflin & Co..-....-. 110 16. John Shillito & Co,_-___-.- 1243 21. H. B. Claflin. & Co...-.-.-- 113 26. od Jouec a ee 29. Marrett, Bailey @ Co....-.. 1183 2. co eee 121 11. George ©. Robinson__-~--~~_- 120 13. H. B. Claflin & Co... -.._ 119 17 an nwa ae 21. Nr eter seem aminnen 111 “ ¥F. DONCRMAN .... ........ P hiladelphia ise Zl. dé. By eae... 2... poston... 22. Prince &. Walker__---- Pittsfield, Mass _- 25. Adams & Meldrum_-_- OTA ocak 24. T. I. Mitchell -.~~ ~~~ Middletown, Ct.. 24. J. W: Parker ....cc.. __Jersey City, N. J. 27. Harris,Chipham & Co... B Gston. .... ee 28. Warner Bros......_._. Brie: Pa. . es eae a 29. J. Be Jens... ...... 2... Boe... cc . c. 30. H. & H. N. Arnold. —_~-Greenville, O._—- 0. FW FO. cane Jersey City, N.J.- 30. J. B. OED . 2 DW. Smith & Son... Newark,N. J... .- 2. W. F. Baker & Co. ....... Philadelphia —-- 5. . K. Lautermiich...... Tim, GO... 6. A. W. Skilton & Co.__-- Philadelphia ~~~ Ss. Lord & di avlor Bene op ork Now Yor. ..... 8. A. B.Van Gaasbeck & Co. Albany —.—--- -- b. 7 4) Boy lan X i gos ES eee | 12. L. BL Chester & Co. ...... _ Bama .. ..-. 13. A. AMO 66 ._Brooklyn. -.-.-- D.. d. URTOY Sou. 2 ea ee Chambersburg. - 118 , , 13. Spring & Avery- ..---. Grand Rapids -- 13. Adam & Meldrum ____-_ Buffalo .._..- a 13. Thayer & Sears....._.. ORO. 14. Fowle. ‘Lorry & Uo....... Boston. _....... 10W—t4S2 26. JOHN DOBSON ET AL. Name. Address. L. K. Lautermilch_____’ sie, Of Harris, Chipman & Co. Boston... .. --- J. Raeder & Bro..------ Easton, Pa..... - VS. JOHN DORNAN ET AL. No. of pieces. 1 ex.sup 1 ¢é 1 ex. 1 1 super 1 ex. “ 1 super 1 1 1 super 1 super aos. * i ex. “ 1 ex. * 1 super 4 ex. “ 1 ex. “ 1 super 1 “ 1 ex. ox. * 1 super i ox. “ 1 ex. * 1 super 1] super l sé l éé 1 éé 1 ex. “ 1 ex. 1 ex. “ &é 1 super 1 ex. “ l ex. “ 1 ex. “ 1 super Lex‘ 1 super 1 ex. “ 1 super cs ell amalll somes peed fed peed ] 73 Price. 10 10 95 10 95 10 95 am a JOHN DOBSON. ET AL. VS. JOHN DORNAN ET AL. Name. : Address. No. of pieces. Price. pote Oe : | x. sup. 1 10 16. Warner Bros..... .__._._ Erie, Pa.. 1 ex. 1 10 : Lord & Taylor: -—_. . + Sede ae Snowden & Otte......-Cineimnatl —. en." — 2 20 Oo te seine... 1: New York... super = 95 Wm. Pollock........--Philadelphia --- . 95 J. H. 4g S| ee es oe ~.POy, NE ox. 10 i Manter Leeann Pom... 1 es. * 10 ‘Andrew Bailey -_-- ~~~. Brooklyn ] super Yo CLS. Weatherby & Co..- Cincinnati | oo ae A. W. Skiliton & Co.._. EE mag ee ee x 95 Ryce’s Carpet Hall_.___-Terre Haute_..._ 1. 95 ge Ausdi ' AY I; arman. Day : 7 ex.“ 1 18 2 Ge ex, | 10 26 ASN Naa a RET eS. Tata ane RTS re RRR ow cee ii ° irre Mansur & C oO. ceo 2 10 Fenn & Carter__._. oat itts field. Mass. . 1-ex. “ — 10 June 2. Adam & Meldrum —-_.——Butlalo ex. * 10 J. Krause & Co._._~.____Cleveland eX. 10 W. 8S. Leigh... =. ew Tork super = 90 A. sid Skilton X Co. —----PInladelphia i ox. * 10 Chambersburg —— 1 super 95 ‘. Allen, Mackev & Co. -__. Chicago +s és éé i. Stark Bros. ............ Milwaukee ....... A. B.VanGaasbeck & Co. Albany —-~-~-~-- J.B. Judkins_.-------- Boston ee. ——_—o a -— a Allen, Mac key ay -& Co Chicago W.& F.C. Trauernicht__St. Louis. _- Beckwith, Sterling & Co.Cleveland A.W. Skilton & Co Philadelphia - -- D. F. Haight Brooklyn Address. No. of pieces. 1 super éé éé 6 super 2 ex. “ 1 super l ex. “ 1 super ] se i ex.” ] super ] éé I ex. sup. | super 1 ex. “ 1 super 1 sé ] ex. “ | super ] sé 1 ex. ] super 1 ex 1 ex. 1 ex. 2 ex. 1 super ] sé 1 éé ] ¢ 1 ex. 1 ex. 1 super l ex. “ 1 super 1 ex. “ l ex. “ 1 ex. ‘ 1 super 9 rT; oot ts ce 1 ex. 1 ex. 1 ex. JOHN DOBSON ET AL. Vs. JOHN DORNAN ET AL. - Name. Address. No. of pieces. Price. Sep. 17. Allen, Mackey & Co.---.Chicago ---.--- lex.sup. 1 10 19. J. Krauss & Co. ._---.--Cleveland - ----- 1 ex. “ 1 10 19. A. W. Skilton & Co __.. Philadelphia --—~ lex.sup. 1 10 21. A Gall... .._...._..._Indianapoim ... 1 sper 95 . oo. 25. Allen, Mackey & Co_----Chicago ~------ lex." 1 10 °° rs a ‘ De eee ae med Isuper. 9 . 30. S. C. Foulk —--- ee es Philadelphia .-- 1 5 95 - ‘Allen, Mackey & Co..-_Chicago -..-... lex.” 1 10 “ Peasley & Bond —-.-~--- ,06tOn......--.- 2 Sper 9D Get. to Pdkins i. “ Q5 5. W.'P. Kilburn & Co —_. Portland, Maine_ lex.“ 1 10 8. A. Van Gaasbeck & Co_. Albany -------- os. 1 10 “ L. L. Blake & Co ____ -- Lewiston, Me --- 1 super Q5 9. Allen & Maxwell -___-_- . WS ote . Q5 ‘3. CURIS... ce ee poem cc 8 @ Y . : wombs of ece uo tx." 1 10 i4. OCole & Nutting... ..... Troy, N. ¥..2.. Tex.* 1 10 19. Barclay & Black ...... Detroit _-_..-._. 1 super 95 90. J. Kranses & Co... ..... Cleveland...... 2ex.“ 1 10 « OW.&E. Partridge & Co Chicago _.-.--. lex.“ 1 10 | BS. 2h. Wee... 1 ee Oe 1 10 Nov’r. 6. Jos. Wild & Co ---._--..New York... .--- l ex. “ 1 10 13. J. dudkins.. ... -----Boston ea tetas Nee 1 super | 95 a. : 17. . wns we ee ee ~ 20s. 1 10 L875. oe Feb. 1. Beekwith, Sterling & Co Cleveland ..-_-- lex. “ 1 00 WS. doa We & Co... .... New Fork... tex 1 0O 15. King & Blakeman-__-_-. Troy, N. Y -.... lex.* 1 OO 29 WP. Clark ...._.. ... Manshela ©... lox “ 1 00 95. J, Gotdthwaite & Co.... Boston ._.. .... gex.* 1 00 25: Lord @& Teylor ..._....New York ....... lex, “ 1 00 26. Joa Wilda & Co... at j ; Supreme Court of the United States. —— +o --—-- No. 202. Ocroper Term, 1885. -——- +] .------- JOHN DOBSON and JAMES DOBSON, Appellants, | US. JOHN DORNAN, FRANCIS MAYBIN, ROBERT DORNAN, and JOHN PICKENS, trading as DORNAN, MAYBIN & CO. —_————~ ao ——___—_ 9 BRIEF FOR APPELLANTS. EEE 2... semen -ATECTOR T. FENTON, RICHARD P. WHITE, Counsel for Appellants. | PHILADELPHIA: DUNLAP & CLARKE, PRINTERS, Hastines’ Bui.Lpine, 819 & 821 FILBERT ST. 1886. ex. ie . ‘ 2 ks ake Scere Bt" es potctene atc sana se ar Supreme Court of the United States. ¢ ) ry JouN Dospson AND JAMES Dopson, Appellants, -— No. 202. | i : | October Term, JoHN DorNANn, Francis MAYBIN, Ropert Dornan, and Joun Pick- 1885. ENS, trading as DorNAN, MAyYBIN & Co., ) A ppellees. STATEMENT OF THE CASE. This is an appeal from the Circuit Court of the United States, for the Eastern District of Pennsylvania, by John Dobson and James Dobson, who were defendants below, and against whom the said Court entered a decree in equity for the payment of $6,128.79 and-costs, and awarding a perpetual injunction, at the suit of John Dornan et al., trading as Dor- nan, Maybin & Co., appellees and complainants below. The bill is founded on Letters Patent of the United States, No. 6,822, dated August 19, 1873, for the term of three and a half years, granted to the appellees as assignees of Charles A. Righter, for a design for carpets. The bill, which was filed February 12, 1875, charged the appellants with the unlawful use of said design in the manu- 9 facture of carpets, in infringement of the alleged exclusive rights of the appellees, claimed to be secured to them by the said design Letters Patent. ‘An Answer was filed, denving that the defendants had made’ or sold any carpets bearing the patented design. Proofs were taken by the plaintiffs and by the defendants, and the cause having come on to be heard thereon, the Circuit Court, on 25th of April, TS76, entered a decree awarding an injunction, as prayed for in the Bill, and referring the cause to a Master, to take and state an account of ‘the gains, profits, and advan-- ‘tages which the said defendants have received, or which have “arisen or accrued to them, from infringing upon the exclusive ‘rights of the said complainants, by the manufacture, use, and * sale of carpeting bearing said patented design, and, also, ‘what damages in addition thereto have been suffered by the complainants, by reason of said infringements.” In pursuance of lis appointment, and by virtue of this-de- enee, the Master heard the parties and their witnesses, and, after careful consideration, filed his report, to which ex- ceptions were filed in due season by the appellants. The matter of’ these exceptions came on to be heard by the Cire cuit Court, and was argued by counsel, whereupon the said Court, on the third day of October, 1882, entered a decree, sustaining the Master's Report, overruling defendants’ excep- tions: thereto, and awarding damages to the complainants, as stated, with costs, whereupon the defendants appealed to this Court. at SEL ARNG eR LE RS Et SIO gh IR ES ill adt int Hi. panBeion He . * Mgt eietrnisige ii voentn ssn ye potent er escapes ce es : , : A cki. te Se a ie tng el NI a e he. ee... Oy ’ 3 SUBJECT-MATTER OF THE PATENT; AND HEREIN OF THE TISSUES ARISING UNDER THE PLEADINGS, AND UNDER THE REFERENCE TO THE MASTER. 3 The Patent, in its title, purports to be for a ** Design for Carpet 5" and the entire descriptive part of the specification, if it may be called ‘descriptive,’ is contained in eighteen words, as follows: ‘‘The nature of my design 1s fully represented in the accompanying photographic iilustration, to which reference is made.”” This is followed by the elaim in the following words : **] claim, as my invention, the configuration of the design hereunto annexed, when applied to carpeting.”’ These quota- tions constitute the whole specification, and reference must be had to the drawing or photographic illustration accompanying it, to obtain even an idea of the general nature of the design, leaving the public wholly in ignorance as to whether the novelty resided in the design as a whole, or in any special coloring or arrangement of parts, or in the elements consti- tuting the whole. design. The testimony before the Examiner was directed, on the part .of the plaintiff, to show that the defendants’ carpets closely resembled those of plaintiffs’ bearing the patented design; and the proofs submitted by defendants tended to show how far the design was well known, and also directly -combatted the idea of substantial similarity between plaintiffs’ and defendants’ designs; they were contradictory and of nearly equal weight on this latter point; so that the Court evidently decided the question of infringement with little aid other than ocular inspection of the samples; and found in ‘favor of the plaintiffs on this question and on that of the validity of the patent, the only two issues under the pleadings. 4 Although it 18 quite apparent that the designs, as such, are not alike, though having a general similarity of appearance (as stated. by plaintiffs’ witness, Dixon Bean, Record, page 9, folio 17); they are not sufficiently alike under the test applied in Gorham Co. vs. White, 14 Wallace, 511, to warrant the con- clusion that the design pattern on defendants’ carpets infringed the plaintiffs’ patent, more especially as this patent, in the . absence of any descriptive specification, should have been con- strued in its narrowest sense, viz., for the whole design as a unit, so that a pattern containing anything less than the whole - or differing in some of its parts would not fall within the limits of the claim. That the defendants’ design did not contain the whole pattern, as shown in the patent, is not contradicted ; indeed, is admitted by every witness on beth sides; the plain- tiffs’ witnesses claiming, and the defendants’ witnesses deny- ing, that the two designs were in ‘ general appearance’’ alike. The testimony on this question will be noticed more in detail hereafter. It is contended, however, that the patent is void on its face: in that.the specification is vague, uncertain, indefi- nite and insufficient, lacking all the essential features of a descriptive paper pointing out the nature of the invention and wherein the novelty of the thing claimed resides, as required by the statute. It contains no description whatever ; - and, like the claim, refers to the drawing. In brief, the patent is nothing more than a certificate of the registry in the Patent Office of the design shown in the illustration, without a single word of explanation accompanying it other than that it is applied to carpeting. If such a patent can be sustained, it would amount to a judicial interpretation of the statute relat- ing to design-patents, that no descriptive specification is re- quired in a patent for such inventions. A further discussion PRO A DATS SLRS REE ES AE Ge EHS Rc OEE IIE A RIED! RS? OE OP ~~ o of this subject will be found in the Argument. The inter- locutory decree adjudged the patent to be valid; also, that the defendant had infringed the same, and ordered an account of profits and damages. The record contains no opinion of the Court below, and it is presumed that none was delivered. Before the Master, it clearly appeared that the defendants had realized no actual profits on the carpets made and sold by them bearing the design adjudged to infringe the plaintiffs’ . patent (see Master's Report, Record, page 37), and the Mas- Ee} ters calculations are based upon the damages, so-called, alleged to have been sustained by the plaintiffs; and these damages he computed by finding the quantity of such carpet made and sold by defendants, the net profit per yard made by plaintiffs on their own carpet bearing this design, and pre- suming that the former displaced the latter on the market, the Master awarded to the plaintiffs a large sum of money, being the total profit they claim they would have made on the ‘arpet made and sold by defendants, had they, the plaintiffs, made and sold the same. MASTER'S REPORT ; EXCEPTIONS THERETO, AND - FINAL DECREE. Proofs were adduced before the Master to show the quan- tity of carpet made and sold by the defendants bearing the design adjudged to infringe the plaintiffs’ patent: also, to show : that the plaintiffs had a large trade for. the carpet made by them bearing the patented design, and what average profit they made on the same during the time covered by the adjudged infringement ; and (though finding that defendants act [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1884_202%3A0. Public record. Not legal advice.