The defendant in error was the plaintiff in an action at law brought to recover damages for the infringement of the Hyatt letters patent. No. 206,112’, of date July 16, 1878, for an improvement in composition floors, roofs, pavements, etc. The specification of the patent refers to what are claimed to be “new and useful improvements in the use and application of hydraulic cements and concretes in combination with metal as a building material,” etc., and describes the building material so referred to as hydraulic cement, “concrete,” etc., and describes the combination therewith of metal bars or ties embedded therein, and having their surfaces roughened in some manner to prevent them from slipping horizontally in the material, and proceeds thus:

The defendants manufactured building material in a manner similar to that described in the Hyatt patent, the only difference being that, instead of using metal rods with projections or bosses produced in the casting, they used a square rod, so twisted as to present the appearance of a screw. For the use of the twisted rod in such combination, the defendants had secured a patent of date September 16, 1884, which was read in evidence. The only assignment of error necessary to be considered is the refusal of the court to instruct the jury concerning the effect to be given to the fact that a patent had so issued to the defendants.

*149 In Coming v. Burden, 15 How. 2G5, the supreme court, after referring to the presumption which attends the fact that, after an examination of the records of the patent office, a patent has been issued for the plaintiff’s invention, said:

The case of Blanchard v. Putnam, 8 Wall; 420, overruled this holding of the court, and decided that evidence of the defendant’s patent is not admissible.

The decision in Blanchard v. Putnam was followed in the trial of this case, as also in that of Norton v. Can Co., 59 Fed. 137 , where it was said:

The recent cases, however, of Miller v. Manufacturing Co., 151 U. S. 208 , 14 Sup. Ct 310, and Boyd v. Tool Co., 15 Sup. Ct. 837, citing Pavement Co. v. Elizabeth, 4 Fish. Pat. Cas. 189 , Fed. Cas. No. 312, expressly affirm the doctrine of Corning v. Burden, and hold that the issuance of the defendant’s patent creates a prima facie presumption of a patentable difference from the prior patent of the plaintiff'. The plaintiff in error was entitled, therefore, to an instruction which would permit the jury to consider the presumption that the law creates from the fact that a patent has issued in any case. The judgment will be reversed at the cost of the defendant in error, and remanded for a new trial.