Appeal from the Circuit Court of the United States for the Northern District of California.

Suit in equity by the Leather Grille & Drapery Company against Louis B. Christopherson and Oscar M. Walton, individually and as copartners under the name of Christopherson & Walton Company. Decree for defendants, and complainant appeals.

This is an appeal by the complainant in the court below from a decree dismissing its bill, wherein it sought an injunction and an accounting for damages against the defendants, appellees, for the alleged infringement of letters patent for an improvement in devices for forming ornamental structures such as grilles, portiéres, etc., out of leather, felt, and other flexible materials. The patent, which is numbered 691,598, was issued to the defendant Louis B. Ohristopherson and one M. M. Gillespie on January 21, 1902, and covers a device or process which is therein described as consisting “of a flexible material having slits or interspaces made lengthwise of the strips, said strips being opened out, so that the length is essentially transverse to the previous direction and the folding of the edges and connecting them with intermediate unions, so that any desired ornamental forms may be built up from these units.”

The claims of the patent invoked as being infringed are 1, 3, and 7, and are thus stated in the patent:

“1. A device for the formation of ornamental structures comprising a strip of flexible material slit longitudinally and having the sides stretched transversely of the strip, and means independent of said strip for uniting the transverse sides formed by the slits.”

' “3. A device for the formation of ornamental structures, including a series of flexible strips having longitudinal slits, said strips having their sides streteh-ed transversely, and unions or connections to which the sides of the strips are secured to insure a permanent form of the completed structure.”

“7. Flexible strips having lines of slits, said strips having their sides expanded transversely, and unions or connections by which the sides of said strips are connected, and the forms or ornamentation shaped and determined.”

An illustration of the forms of the device in different stages of the process as disclosed in the patent is presented in the drawings here inserted:

Fig. 1, the primary form, is a view of a strip of material having the slits made in it, but before stretching or expansion; Fig. 2 is the same strip extended laterally by stretching; Fig. 3 shows the manner of attaching the strips to the unions; and Fig. 4 is a portion of a grille with different forms of unions.

■Prior to the date of the alleged infringement the grantees of the patent transferred and assigned all their interest in and rights thereunder to the complainant and appellant; and at the time of the acts complained of the latter was engaged in manufacturing and selling to the public ornamental structures in accordance with its privilege.

Subsequently to this assignment the defendant Ghristopherson applied for and was granted patent numbered 766,595, issued on August 2, 1904, covering an improvement in the same art, and wherein his invention is thus described:

“The objects of my invention are, first, to expand the material as much as possible, both in its own plane and transversely thereto; secondly, to produce as great a variety as possible of curves and of surfaces of curvature; thirdly, to provide a construction which shall be strong and durable, and therefore of especial value for material not adapted to withstand heavy strains, as thin leather or fabrics woven; fourthly, to provide a construction whereby from the plane blank a design of double curvature may be produced, showing from the front comparatively few raw edges, thereby rendering it adaptable for woven fabrics, as silk or cloth; fifthly, from such plane blank to provide a design of double curvature in which the pattern of the unit shall be broad and striking in appearance when viewed at a distance.

“In the accompanying drawings, Fig. 1 is a front elevation of a piece of grillework constructed in accordance with my invention. Fig. 2 is a blank from which one of the units of the grillework is formed. Fig. 3 is a section of the Une A, A, of Tig. 1. Fig. 4 is a section on the line B, B, of Fig. 1. Fig. 5 is a view of a blank illustrating my invention in its simplest form. Fig. 6 is a side view of the unit formed therefrom without the side twist. Fig. 7 is a similar view of the unit formed therefrom with the side twist, as in the main illustration of my invention in Fig. 1. Fig. 8 is a view of a blank slightly modified from Fig. 5.”

The following are the drawings thus described:

Referring to these drawings the patent further states:

“The blank is formed into the unit, as follows: It is first folded down at right angles at the ends, 2, in the direction of the main axis of the blank, but for a short distance only from said ends, the intermediate portion, 11, being by said folds slightly curved transversely of said main axis, as shown in Mgs. 3 and 4. The free end of each strip, 6, is' then given a double curvature. Mrst it is bent back toward the attached end of the strip, or about an axis in the plane of the strip, but transverse to its general direction. Then said bent end is twisted about an axis parallel to said general direction, so as to bring-the under surface of the strip, which was brought uppermost by the first bend, against the adjacent side of the folded end of the main portion of the blank. The ends of the strips being now in juxtaposition with the folded ends of the main portion, said blank has now been folded to form a unit for ornamental purposes. Said ends of the main portion, together with the free ends of the strips adjacent thereto, are secured by any suitable unions.”

The claims of the patent are in keeping with this description.

It is in practicing the art under this .latter patent that the alleged infringement is claimed, to arise; it being admitted that for some time prior to and at the time of the filing of the bill the defendants were manufacturing and selling ornamental grilles substantially as illustrated in Mg. 1 last above displayed.