Appellee, the A. S. Boyle Company, an Ohio corporation, is the cvyner of patent No. 1,838,618 (hereafter called the Griffiths patent) and is engaged in the business of manufacturing and selling “plastic wood.” Appellant Webb Products Company, Incorporated, a California corporation is engaged in the business of manufacturing and selling “duratite wood dough.” Appellant Pacific Marine Supply Company, a Washington corporation, has a regular and established place of business in the Western District of Washington, where, among other things, it sells “duratite wood dough.”

Alleging that such sales constitute an infringement of claims 5, 6, 8, 11, 13, 15, 16, 17 and 18 of the Griffiths patent, appellee brought suit against appellant Pacific Marine Supply Company in the District Court of the United States for the Western District of Washington. Appellant Webb Products Company, Incorporated, intervened and was, by order of the court, made a party defendant. Appellants defended on the grounds (1) that all the claims mentioned were invalid for lack of novelty, for lack of invention and for failure to particularly point out and distinctly claim the part, improvement or combination which Griffiths claimed as his invention or discovery, and (2) that, if valid, the claims were not infringed.

The District Court held that, if valid, claims 6, 11, 15 and 18 were not infringed; declined, therefore, to pass on their validity; held that claims 5, 8, 13, 16 and 17 were valid and infringed; and entered a decree enjoining further infringement and directing an accounting of profits and damages. Appellant seeks reversal. There is no cross-appeal. Hence, the only claims here involved are claims 5, 8, 13, 16 and 17.

The Griffiths patent was applied for on November 17, 1923, and was issued on December 29, 1931. The specification states that the claimed invention relates to plastic compositions; that it has for its object to provide a plastic mass which may be used for many purposes; that it may, for example, be used for filling, coating or moulding; that it may be used by pattern makers for filleting and similar work, by joiners and cabinet makers for filling screw and nail holes, shakes in timber and openings at joints and for preparing or repairing mouldings and carvings, or by shoemakers for building up or repairing lasts; that it hardens quickly when exposed to the air, adheres firmly to any clean dry foundation, does not blister or powder when exposed to moderate heat, and is not affected by water, gasoline or other commonly available liquids.

Claims 5, 8, 13, 16 and 17 read as follows :

Elements common to all these claims are (1) nitrocellulose, (2) a volatile solvent and (3) a filler, which in claims S and 13 is “a finely divided cellulose filler,” in claims 8 and 16 “a finely divided wood filler,” and in clSim 17 “finely divided wood.” A fourth element (oil) is mentioned in claims 8, 13 and 16; a fifth (a resinous body) in claims 13 and 16. Appellee’s brief states:

Thus, in effect, appellee states — and we accept the statement — that, in all the claims, the filler referred to is finely divided wood; that the oil mentioned in claims 8, 13 and 16 and the resinous body mentioned in claims 13 and 16 are not essential ingredients of Griffiths’ composition; that its only essential ingredients are (1) nitrocellulose, (2) a volatile solvent and (3) finely divided wood.

Plastic compositions comprising these ingredients were known and used long prior to Griffiths’ alleged invention. One such composition was described in patent No. 65,267 issued to William Hugh Pier-son on May 28, 1867, Pierson’s specification states:

Thus, it is seen, the Pierson composition, patented in 1867, comprised the essential ingredients — nitrocellulose, a volatile solvent and finely divided wood — of the composition claimed to have been invented by Griffiths in 1923.

A plastic composition comprising the same ingredients was described in British patent No. 19,242 issued to Oblasser and Theryc on October 26, 1892. That patent was for improvements in the construction of boxes or receptacles for electric batteries and for other uses. The specification states:

The “agglomerate” thus described by Oblasser and Theryc and the composition claimed to have been invented by Griffiths are, in all essentials, one and the same.

From the descriptions in their specifications, it is evident that Pierson’s and Oblasser and Theryc’s compositions were “doughy” and “putty-like,” and that their ingredients were “in such proportions as to harden upon mere exposure to air to substantially the rigidity and solidity of wood.” The fact that they did not use the quoted words in describing their compositions, and that Griffiths did use them in describing his, is unimportant. Their descriptions and Griffiths’ description differ in form, but not in substance. The thing described is, in each case, substantially the same.

As to what proportions of the named ingredients should be used, Pierson’s and Oblasser and Theryc’s specifications are as definite and specific as are the Griffiths claims here involved. Exact percentages are not given in either. Concerning Griffiths’ failure to be more specific, appellee’s brief states:

The statement applies with equal truth to the disclosures of Pierson, Oblasser and Theryc. A man skilled in the art could tell from their specifications, as readily as from the Griffiths claims here involved, what proportions of the named ingredients were needed to produce the desired result.

Other plastic compositions comprising Griffiths’ “essential ingredients” — nitrocellulose, a volatile solvent and finely divided wood — were described in patent No. 999,-490 issued to Carleton Ellis on August 1, 1911, and patent No. 1,203,229 issued to Frank W. Merrick on October 31, 1916. As a fourth ingredient, Ellis specified castor oil. 8

British patent No. 27,534, issued to William Phillips Thompson on November 19, 1898, described a plastic composition comprising nitrocellulose, a volatile solvent and a “vegetable powder,” which, of course, might be finely divided wood. Thompson also suggested the addition of “other suitable substances dissolved or otherwise such as resins, oils, gums, waxes, or the like.” 9

Were the question of novelty a doubtful one, significance might attach. to the claimed commercial success of appellee’s product, “plastic wood,” manufactured, it is said, in accordance with the Griffiths patent. This, however, is not a doubtful case. The evidence establishes conclusively that Griffiths was anticipated by Pier-son, Oblasser and Theryc, Ellis, Merrick and Thompson, and that, as to the claims here involved (5, 8, 13, 16 and 17), the patent in suit is invalid for lack of novelty. Other defenses need not be considered.

Decree reversed.

Pierson’s “plastic” is nitrocellulose.

This “product” is nitrocellulose.

Alcohol and etlier are volatile solvents.

Sawdust is finely divided wood, or, as appellee calls it, “wood-flour.”

Compare claims 8, 13 and 16 of the Griffiths patent.

This “material” is nitrocellulose.

Ether, acetic acid, pyroligneous acid and acetone are volatile solvents.

Compare claim 13 of the Griffiths patent.

Compare claims 8, 13 and 16 of the Griffiths patent.