BUFFINGTON, Circuit Judge.
In the court below Robert F. Werk & Co., the owners of two divisional patents, Nos. 758,574 and 758,575, granted April 26, 1904, to Robert F. Werk for an oil-press mat, filed a bill charging the F. T. Parker Company with infringement thereof. The claim of 758,574 in issue is for:
“An oil-press mat or cloth made entirely of long animal hair and consisting of warp and weft threads, said weft threads being composed exclusively of soft, pliable hair and the warp threads greatly exceeding the weft threads in number per square inch.”
That of 758,575 in issue is for:
“An oil-press mat or cloth consisting of warp threads and weft threads, each composed exclusively of long hair derived from animals’ tails and manes, which hair is soft and pliable; the warp threads exceeding the weft threads in number per square inch, and the weft threads being thicker than the warp threads.”
On final hearing the court below entered a decree dismissing the bill on the ground of noninfringement. Thereupon the plaintiff took this appeal.
The case has given us some concern. It relates to the great 'field of cotton-seed oil extraction—-an industry with which we are not familiar [122]*122in this circuit. The testimony is meager and throws little, if any, light on the decisive questions involved. As the tonnage of cotton seed is double that of the cotton crop itself, as the value of by-product possibilities is now being recognized, and as the device .here involved made possible, inter alia,’the recovery of more than 1% per cent, of oil and a reduction of 8 cents per ton in operative cost, it will be apparent that the case is one that challenges the attention of the federal courts to which is intrusted that most responsible commercial duty of decreeing the reward of a limited monopoly to a patentee who- contributes something novel, useful, and inventive to a great industry, or, on the other hand, of protecting such ah industry from the unwarranted burden of a monopoly by one who has really not given it anything of that character. In view of these facts we have felt constrained to give to this case a range of somewhat broader examination and discussion than its meager proofs suggest.1
As we have said, the case concerns the extraction of oil from cotton seed. The ordinary method of such extraction consists in chopping up, heating, and otherwise treating the cotton seed preparatory to pressing. This mash is next spread on a part of a mat of camel’s hair. The other end of the mat is then doubled over the mash and the whole subjected to a pressure of several thousand pounds. This pressed the oil from the mash and strained it through the mat. For these camel’s hair mats the patentee, Werk, substituted mats woven of horse hair, and on the two divisional applications as above he was granted the two claims quoted.
It is apparent the essence o-f his invention, if such it be, consists, not in any new method of weaving mats, but in weaving them from the hair of other animals than camels. In other words, his device is an article of commerce, viz., an oil-press mat, woven it is true in a particular way, but in one claim limited to being “made entirely of long animal hair,” and in the other to being “composed exclusively of long hair derived from animals’ tails and manes.”
The proofs show that the horse hair mats of complainant have certain substantial advantages over those made of camel’s hair, in that they last 20 days, as compared with the 5 days’ life of a camel’s hair mat. In the seed cake pressed on horse hair mats there remains an average of 5.92 per cent, of oil, while in that pressed on camel’s hair 7.50 per cent, of oil is retained. The cost of camel’s hair mats is 18 cents per ton of seed pressed, while with horse hair but 1Ó. In addition to this; the seed cake is imbedded in the camel’s hair mat by pressure, and has to be separated by a special machine. It does not so imbed in the horse hair mats, and can be readily stripped off. It [123]*123will thus be seen that Werk’s mat forms an important and valuable economical feature in the industry. Recognizing its value as a hair mat, the defendants wove their mats from the long hair of Chinamen’s cues, which hair, it seems, is an article of commerce. The proofs satisfy us that such human hair mats have the same functional qualities in oil-pressing as horse hair mats.
The value of Werk’s device being shown by the proofs, the case resolved itself into two questions—the validity of his patents and the infringement of their claims.
On the part of the defendants it is contended that the change from camel’s hair to horse hair is a mere obvious substitution, and therefore does not involve invention. Moreover, it is alleged that, if there be invention in such change, the substitution of human hair for horse hair involves more invention, and for that reason, and because Werk’s patent cláims must be restricted to horse or animal hair, they are not infringed by defendants’ use of human hair. The term “camel’s hair” is somewhat misleading, for the covering of a camel is for the most part wool, which wool shades off into the few straggling long hairs which give it the name of camel’s hair. But when woven into these oil mats it is the wool which malees it act differently from a horse hair mat, which has no wool in it. Without entering into a detail comparison of wool and hair, it suffices to say that the essential difference is the capacity of one, and the incapacity of the other, to mat, or “felt,” as it is technically called. Felting is caused by the tiny hooks or scales on wool, which grip and mat on pressure and contact with other strands. A true hair has no such hooks, and therefore will not mat. It is this felting capacity that makes a camel’s hair mat become so tight as to prevent, to a degree, the passage of oil, which a horse hair mat will pass. And it is the absence of this felting in a horse liair mat which makes it possible to strip off the seed cake, while it has to be mechanically torn from the felted camel’s hair one. Felting, as its characteristic distinction from hair, is well known in the textile industries. Thus in Dooley’s Book of Textiles it is said:
“The chief characteristic of wool is its felting or shrinking power. This felting property, from which wool derives much of its value, and which is its special distinction from hair, depends in part upon the kinks in the fiber, but mainly upon the scales with which the fiber is covered. These scales or points are exceedingly minute, ranging from about 1,100 to the inch to nearly 3,000. The stem of the fiber itself is extremely slender, being less than one thousandth of an inch in diameter. In good felting wools the scales are more perfect and numerous, while inferior wools possess fewer serrations, and are less perfect in structure. In the process of felting the fibers become entangled with one another, and the little projecting scales hook into one another and hold the fibers closely interlocked. The deeper these scales fit into one «mother the closer becomes the structure of the thread.”
This nonfelting of hair the patentee has taken advantage of in his device, and points out in one specification, where he says:
“ * * * Hair strands afford good drainage for the oil, and impart a glossy surface to the fabric, that enables the cake to be introduced with facility and the article to be stripped with ease from the compressed material.”
[124]*124And in the other:
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BUFFINGTON, Circuit Judge.
In the court below Robert F. Werk & Co., the owners of two divisional patents, Nos. 758,574 and 758,575, granted April 26, 1904, to Robert F. Werk for an oil-press mat, filed a bill charging the F. T. Parker Company with infringement thereof. The claim of 758,574 in issue is for:
“An oil-press mat or cloth made entirely of long animal hair and consisting of warp and weft threads, said weft threads being composed exclusively of soft, pliable hair and the warp threads greatly exceeding the weft threads in number per square inch.”
That of 758,575 in issue is for:
“An oil-press mat or cloth consisting of warp threads and weft threads, each composed exclusively of long hair derived from animals’ tails and manes, which hair is soft and pliable; the warp threads exceeding the weft threads in number per square inch, and the weft threads being thicker than the warp threads.”
On final hearing the court below entered a decree dismissing the bill on the ground of noninfringement. Thereupon the plaintiff took this appeal.
The case has given us some concern. It relates to the great 'field of cotton-seed oil extraction—-an industry with which we are not familiar [122]*122in this circuit. The testimony is meager and throws little, if any, light on the decisive questions involved. As the tonnage of cotton seed is double that of the cotton crop itself, as the value of by-product possibilities is now being recognized, and as the device .here involved made possible, inter alia,’the recovery of more than 1% per cent, of oil and a reduction of 8 cents per ton in operative cost, it will be apparent that the case is one that challenges the attention of the federal courts to which is intrusted that most responsible commercial duty of decreeing the reward of a limited monopoly to a patentee who- contributes something novel, useful, and inventive to a great industry, or, on the other hand, of protecting such ah industry from the unwarranted burden of a monopoly by one who has really not given it anything of that character. In view of these facts we have felt constrained to give to this case a range of somewhat broader examination and discussion than its meager proofs suggest.1
As we have said, the case concerns the extraction of oil from cotton seed. The ordinary method of such extraction consists in chopping up, heating, and otherwise treating the cotton seed preparatory to pressing. This mash is next spread on a part of a mat of camel’s hair. The other end of the mat is then doubled over the mash and the whole subjected to a pressure of several thousand pounds. This pressed the oil from the mash and strained it through the mat. For these camel’s hair mats the patentee, Werk, substituted mats woven of horse hair, and on the two divisional applications as above he was granted the two claims quoted.
It is apparent the essence o-f his invention, if such it be, consists, not in any new method of weaving mats, but in weaving them from the hair of other animals than camels. In other words, his device is an article of commerce, viz., an oil-press mat, woven it is true in a particular way, but in one claim limited to being “made entirely of long animal hair,” and in the other to being “composed exclusively of long hair derived from animals’ tails and manes.”
The proofs show that the horse hair mats of complainant have certain substantial advantages over those made of camel’s hair, in that they last 20 days, as compared with the 5 days’ life of a camel’s hair mat. In the seed cake pressed on horse hair mats there remains an average of 5.92 per cent, of oil, while in that pressed on camel’s hair 7.50 per cent, of oil is retained. The cost of camel’s hair mats is 18 cents per ton of seed pressed, while with horse hair but 1Ó. In addition to this; the seed cake is imbedded in the camel’s hair mat by pressure, and has to be separated by a special machine. It does not so imbed in the horse hair mats, and can be readily stripped off. It [123]*123will thus be seen that Werk’s mat forms an important and valuable economical feature in the industry. Recognizing its value as a hair mat, the defendants wove their mats from the long hair of Chinamen’s cues, which hair, it seems, is an article of commerce. The proofs satisfy us that such human hair mats have the same functional qualities in oil-pressing as horse hair mats.
The value of Werk’s device being shown by the proofs, the case resolved itself into two questions—the validity of his patents and the infringement of their claims.
On the part of the defendants it is contended that the change from camel’s hair to horse hair is a mere obvious substitution, and therefore does not involve invention. Moreover, it is alleged that, if there be invention in such change, the substitution of human hair for horse hair involves more invention, and for that reason, and because Werk’s patent cláims must be restricted to horse or animal hair, they are not infringed by defendants’ use of human hair. The term “camel’s hair” is somewhat misleading, for the covering of a camel is for the most part wool, which wool shades off into the few straggling long hairs which give it the name of camel’s hair. But when woven into these oil mats it is the wool which malees it act differently from a horse hair mat, which has no wool in it. Without entering into a detail comparison of wool and hair, it suffices to say that the essential difference is the capacity of one, and the incapacity of the other, to mat, or “felt,” as it is technically called. Felting is caused by the tiny hooks or scales on wool, which grip and mat on pressure and contact with other strands. A true hair has no such hooks, and therefore will not mat. It is this felting capacity that makes a camel’s hair mat become so tight as to prevent, to a degree, the passage of oil, which a horse hair mat will pass. And it is the absence of this felting in a horse liair mat which makes it possible to strip off the seed cake, while it has to be mechanically torn from the felted camel’s hair one. Felting, as its characteristic distinction from hair, is well known in the textile industries. Thus in Dooley’s Book of Textiles it is said:
“The chief characteristic of wool is its felting or shrinking power. This felting property, from which wool derives much of its value, and which is its special distinction from hair, depends in part upon the kinks in the fiber, but mainly upon the scales with which the fiber is covered. These scales or points are exceedingly minute, ranging from about 1,100 to the inch to nearly 3,000. The stem of the fiber itself is extremely slender, being less than one thousandth of an inch in diameter. In good felting wools the scales are more perfect and numerous, while inferior wools possess fewer serrations, and are less perfect in structure. In the process of felting the fibers become entangled with one another, and the little projecting scales hook into one another and hold the fibers closely interlocked. The deeper these scales fit into one «mother the closer becomes the structure of the thread.”
This nonfelting of hair the patentee has taken advantage of in his device, and points out in one specification, where he says:
“ * * * Hair strands afford good drainage for the oil, and impart a glossy surface to the fabric, that enables the cake to be introduced with facility and the article to be stripped with ease from the compressed material.”
[124]*124And in the other:
“The highest grade of mat now in general nse is made from camel’s hair hut camel’s hair is objectionable, because it packs and felts together when in use to such an extent as to hinder the free flow of the oil, and the yield per ton of seed is greatly reduced by reason of this felting of the camel’s hair. The oil is compelled to seek an outlet on the sides, where there is no cloth to hold the seed or meats from being washed out into the receiving tanks, which deteriorates the quality of the oil. Camel’s hair also stretches from one-fifth to one-third of its original length, which is objectionable, as this requires the cloth to be cut too short to start with, and before it is worn out it has stretched too long for convenient handling. All these objections are overcome by the use of horse hair, and, the horse hair being soft, it retains all the good features of camel’s hair.”
It has therefore seemed to us that the change from camel to horse hair mats was sufficient to constitute invention in this art, if such use of horse hair mats was first disclosed to the oil-pressing art by Werk. But just here Werk’s patents meet a fatal obstacle, for a cursory examination of standard works shows that at most Werk’s use of horse hair mats in the present practice of cotton-seed oil extraction was but a revival of an old and well-recognized use of tire horse hair appliances in the general art of oil extraction.
Turning to the 1895 edition of the Standard Dictionary, under the word “hair” we find: “Hair cloth; specif.: mats woven from horse hair used in expressing oils,” etc. The nature of this practice, thus briefly outlined in the dictionary, will be found by reference to the ninth edition of the British Encyclopedia, published in 1884, where under the head of “Oils,” it is said:
“The. sequence of operations in treating oil seeds for the separation of their contained oils is ordinarily as follows: (1) The crushing or grinding of the seed or other substance; (2) heating the oleaginous meal so prepared; and (3) expression of the oil by mechanical power.”
Under the head of “Pressing,” the article then says:
“With the least possible delay the meal is transferred from the heating kettles, so that the oil may be pressed out while the material still retains its-heat—measured quantities, say 10 or 12 pounds of meal, are filled into woolen bags of strong, thick texture, sufficiently open and porous to allovy free flow of the expressed oil, yet having consistency enough to resist rupture by the enormous pressure to which it is subjected. Each bag is further placed within ‘hairs,’ tliiclc mats of horse hairs hound with leather. In some methods of working press-cloths—not bags—are used; and the construction of recent presses is such as to dispense with the use of bags or other coverings.”
Samuelson on Oil Well Machinery, 1858 (in Proceedings of the Institution of Mechanical Engineers) vol. 9, pp. 27-42, says:
“The bags after being filled are placed separately between what are called the hairs, which are hags made of horse hair with an external covering of leather. The same description of bags and hair are used, whether the oil be expressed by means of the stamper, screw, or hydraulic press.” Page 31.
Spon’s Dictionary of Engineering, 1874, vol. 3, in discussing Samuelson’s article says:
“The bags into which the seed is measured from the kettles hold 10 pounds of seed each, the horse hair wrappers into which they are deposited being 2% feet long.”
[125]*125The use oí horse hair in oil extraction is referred to in British patent 2,645 of 1877, to H. C. Newburn, for improvements in apparatus for pressing and filtering beet root juice, oils, and other substances, as follows:
“The apparatus * * * acts both as a press and as a Alter. * * * These Alter cloths aro composed of three thicknesses—the first consisting of perforated bands or straps, * * * the second of coarse fabric of horse or other hair which forms the supple and elastic part of the filter, and the last of a fine and uniform fabric, such as merino, cashmere, or alpaca, which constitutes the filter properly so called.”
Brannt’s Animal and Vegetable Fats and Oils, 1888:
“The material used in the manufacture of press-cloths and bags should be capable of great resistance, and while close enough to prevent any meal from penetrating, allow the oil to run out as freely as possible; properties not readily found combined in any one material. The most suitable materials are cotton, sheep’s wool, and horse hair.” 2
With such practices existing in the general art of seed-oil extraction, practices of which the court takes judicial notice, it follows that Work’s patents did not disclose any such novel information to the cotton-seed art as warranted a grant to him of patent monopoly therefor based on the use of horse hair. This conclusion renders it unnecessary to discuss the question of infringement which the court below decided in favor of the defendant. In view of the fact that the references quoted were not given in evidence we will defer sending the mandate to the court below until such time has elapsed as will enable counsel to determine whether any such reasonable ground exists as warrants a motion for reargument or other form of relief to meet such references.