Fry v. Rookwood Pottery , 41 C.C.A. 634 ( 1900 )

BU RTON, Circuit Judge.

This is a bill to restrain infringement of patent No. 399,020, of March 5, 1889, granted to Laura A. Pry for an “improvement in the art of decorating pottery ware.” The answer denied novelty, and averred that the improvement had been described in printed publications prior to the alleged invention of the complainant, in a patent to B. Walkup, of May 6, 1881, a patent to A. Peeler, of April 25, 1882, in the life of Josiah Wedgewood, in the “History of the Ceramic Art,” and in other publications; and that the process had been known and in public use prior to complainant’s invention by Peeler, Walkup, Whipple, Rigowsky Clay Pigeon Company, the Matt Morgan Art Pottery Company, Carter, Cincinnati School of Design; and that the patent was void for want of novelty. The specifications of the Fry patent thus state the invention and method of application:

“My invention consists in the application to the surface of the ware after the article has received its final shape, f nd before it is finally glazed or fired, suitable coloring matter in the form of a cloud or spray, as hereinafter described, whereby a particularly soft, delicate background or shading is produced upon the ware, which may be made to gradually fade or vanish in one or more directions, and to blend from one color to another without any perceptible line of demarkation. It consists, furthermore, in heating the ware when hard or glazed upon the surface, and thereafter applying the coloring matter, in manner as hereinafter described, to the hot surface, and finally firing or glazing the decorated article. To carry my invention into effect, the coloring-matter is blown upon the surface of the ware — either in its soft state, in the ‘bisque’ state, or on the glaze before firing — in the form of a cloud or atomized spray or mist, produced by means of any of the usual forms of atomizers which are operated by an air blast, or a steam blast, or by the.lungs of the operator, and which, being well known, need not be herein described. After the ware has thus been decorated, the color is fixed by firing the war.e in the customary manner. I employ the coloring matter either in a liquid or semiliquid form, or in the form of a very dry, 'almost impalpable, powder, as desired. As the coloring matter is blown from the tube of the atomizer, and carried therefrom in a cloud of fine, almost imperceptible, particles, it may be readily directed upon the article in such .manner as may be found best adapted to produce the desired effect, the application being freely made where the color is to be intense, and more delicately made in proportion as the color effect is to be delicate, or otherwise varied as the taste, skill, or ingenuity of the operator may dictate. A single color may thus be applied to a color ground, or different colors may be applied separately, or by means of separate atomizing-jets several colors may be applied simultaneously. By this process' delicate clouding — if ‘clouding’ it may be called — is produced entirely free from outline and possessing a peculiarly delicate ‘vanish’; and where two colors merge a peculiar softness of blending is secured, which may not otherwise be obtained. A variety of new and beautiful effects may also be obtained which it is not necessary herein to describe. The coloring-matter and the glazing material for the clay ware may be mixed together, and applied to the article by my process, or the coloring matter may be applied as above described, and the glaze thereafter applied by the usual process of dipping and firing. Where the clay ware to be colored and decorated has been once fired, and is not, therefore, sufficiently absorbent, I -heat the same before blowing the color thereon, the effect of the heat of the article being to cause the liquid coloring matter to quickly dry without marring the effects which are sought in its application. I am aware that coloring matter in a liquid state has heretofore been applied to the glazed surfaces of china ware by sprinkling or spattering the same thereon with the aid of a comb and biush, the comb being passed over the brush dipped in the coloring matter in such manner as to cause the latter to fly off in fine, independent drops or particles, this process being technically known as ‘spatter work,’ and I make no claim thereto. My improved process differs from spatter work in that, instead of being spattered in small, independent drops, the color is laid upon the ware in a cloud or sheet of almost imperceptible spray or mist, producing very different effects, and such as have hitherto been unknown.

“I claim as my invention: (1) The improvement in the art of decorating articles of clay ware which consists in blowing an atomized spray or cloud of coloring matter upon the surface thereof, and thereafter fixing the same by firing, substantiallv in manner as described. (2) The improvement in the art of decorating clay ware which consists in heating the surface and blowing upon the heated surface an atomized spray or cloud of coloring matter, and thereafter fixing the same by firing, substantially ih manner as described.”

The • discussion of this case by the-learned circuit judge (90 Fed. 494) is so full and satisfactory .that we are content to affirm the deoree of the circuit court upon the opinion of that court, which, so far as it relates to the question of patentability, was as follows:

“It is conceded that the defendants only infringe the first claim of the patent covering the application of color to the clay in its green state before it is fired at all. Color is applied to pottery by the use of mineral pigments carried in a solution of clay. These are technically called ‘slips.’ The gist of Miss Fry’s improvement was the spraying of these slips by the use of an atomizer upon the green clay molded into the desired form. Every other step in the process which she describes was old. The application of the color to the green clay before any firing was confessedly old in the making and decorating of the pottery. The only change claimed to have been effected was in the means by which the color was applied, to wit, by atomizing, rather than by a brush. The only question for the court to decide is whether, in what, had been done before, there was a palpable suggestion of atomizing and spraying color upon pottery as a means of getting better effects in the decoration. It is to bo borne in mind in determining such a question that the function of the court is not to consider what Miss Fry’s actual knowledge of the prior art was, and then to decide whether, with such knowledge1, what she did involved real invention; but the court is bound to assume that she knew everything about the art of applying color to pottery or kindred surfaces which was contained in printed publications or in the public history of the art, and upon that assumption say whether the step she took in the art required the exercise of the inventive faculty. Approaching the question thus limited, we find that' in the Chinese method of decorating- pottery it liad been common to blow upon the articles to be decorated in the green clay the color through a bambo pipe having stretched across the end of it a piece of gauze or other material for dividing the pigment into fine particles, and thereby produce a spraying effect. Two pieces of pottery thus decorated have been exhibited to the court. It was old to use a mouth atomizer in blowing upon paintings shellac or other fixative necessary to preserve them. It was old to use the same process with charcoal sketches. In this condition of the art, Abner Feeler, on October 1, 1881, — throe years before Miss Fry claims to have conceived her invention, — applied for a patent for a paint distributor, and the patent was issued to him on April 25, 1882. He says in his specifications: ‘My invention relates to an improvement in devices for distributing pigments, the object being to apply to surfaces of any character all kinds of liquid coloring matter in a state of extreme attenuation. With this end in view, my invention consists in the combination with a reciprocating needle arranged and adapted to feed a quantity of liquid pigment to its point at every stroke of devices for projecting a jet of air against the needle and atomizing the liquid pigment.’ ”

It is unnecessary further to describe the mechanism of the invention than to say that it consisted of an ordinary atomizer with devices for holding- the pigment and increasing the atomization by the assistance of a reciprocating needle, which presented the pigment in fine drops at the mouth of the atomizer. It was merely an improvement on an ordinary atomizer. The patentee, in describing the operation, said:

“In the reciprocating movement of the needle its point is drawn within and immersed in the pigment in the receptacle, a small quantity of which will adhere to it. When now the needle is thrown forward, its point will divide the air jet issuing from the pipe, D, and the adhering color will he blown from its opposite sides thereby, and carried to any object within convenient range of the jet. The quantity of color" adhering to the needle is so small, and its atomization so perfect, that the individual particles of color are hardly discernible upon the object on which they are blown. It will therefore follow that with my distributor, and with one pigment, colored effects may be produced which will descend from the palest tints capable of being produced by the extreme attenuation of the- color through" all of the "iniermediate tints down to the depth of color formed by the paint in mass. - - A-s..the tone of the different effects will depend upon the length of time that the jet is directed to' any one point, exquisitely graded shading may he produced hy its careful manipulation. In polychromatic painting, in the prosecution of which it is often necessary, in order to obtain the desired tints, to apply one pigment upon the surface of another color, my distributor will be of great value, as, after it has been used to apply one color, the pigment receptacle may be cleansed, and another color introduced into it, and distributed upon the color first applied. In this way a blending of color may be produced almost unattainable in brush painting. In painting portraits either in color or in sepia, and in finishing solar prints, the device may also be used to excellent purpose on account of its adaption to produce those soft and delicate tints which this class of work demands. In fact, in all situations requiring delicate coloring my device will be found a great aid in the application thereof.”

This patent was assigned to Liberty Walkup, .to whom was issued another patent for a device which is merely an improvement upon Peeler’s paint distributor. .Like Peeler’s, it is a device for distribution by atomization of pigments in the art of painting. He says, in his patent: “This- invention relates to machines employed in the distribution of pigments in the art of painting, but more especially in the fine arts.” Walkup, since 1888 and 1881, down to the present time, has been engaged in the manufacture of a device that he' called an “air brush,” to be used for the distribution of color over surfaces of all kinds. In his advertisement issued in 1883, — a year before Miss Fry conceived her improvement, — Walkup said that the air brush would handle liquid pigments on any surface known to the art, and that it would handle any liquid pigment in a satisfactory manner; that it could be applied to “India ink work, water colors, crayon work, photography, pastel work, architecture, lithographing, civil engineering, monumental drawing, designing or house decorations, drapery and.costume designing, china decorating, colored photographs, artotypes, photogravures,” etc. There is uncontradicted evidence that in 1883 Mrs. Walkup, the wife of the inventor, used the air brush to-decorate china, which was subsequently fired, and that three pieces of china were thus decorated to show that the brush was adapted to. the work. It is contended that the Peeler and Walkup patents cannot be successfully used with the heavy slip coloring matter that is used to decorate pottery. That is contradicted. It is not material, however, whether the particular form of atomizer used by Peeler- and Walkup would distribute with sufficient ease the heavier coloring material used in pottery decoration, because the change from Walkup’s invention to the common form of atomizer was palpable. Walkup’s atomizer was merely an improvement on the common form, and was invented only to make the spray finer than the ordinary atomizer would make it. Walkup’s patented device necessarily contained the obvious- suggestion that an ordinary atomizer would accomplish the same result in a less degree. _ It is to be noted that Miss Fry does' not mention in the specifications of her patent any particular form of atomizer. It appears that she herself used the ordinary mouth atomizer when'she began this method of coloring at theRookwood Pottery, but that afterwards, because the use of this form of atomizer was disagreeable and harmful to the throats of the designers and artists of the Rookwood Pottery, air pumps and other .mechanical devices were applied to the working of atomizers under-direction of Mr. Taylor, the manager of the pottery. The advantages to be derived from atomization and spraying of coloring-matter on surfaces to be decorated were fully set forth in Peeler and Walk-up’s patents, and in the advertisement of Walkup, long before Miss Fry attempted the use of an atomizer. The particular form of atomizer to be used with the heavier pigments was a matter of detail and mechanical skill for which no patent can be supported.

It appears that the mouth atomizer for distributing and spraying color on clay was adopted by a number of persons, who were entirely ignorant of Miss Fry’s use of an atomizer for such a purpose, at or about the same time that she began its use. It is clearly established that Matt Daly used the atomizer for the distribution of coloring matter upon pottery about the same time as Miss Fry; that Ligowsky, an inventor of many patents, also used the same method of distributing coloring matter; and that W. A. Long, aowitness for Miss Fry in this case, after having experimented with the Walkup brush, and finding it hardly adapted for the distribution of such heavy coloring matter as the slips, began at once to use the mouth atomizer. It is not a matter of importance whether these uses of the atomizer were anterior to or after Miss Fry’s use of the same device. They are not referred to as prior uses, but they are material because they tend to show that, after Walkup’s device became known, the- use of an ordinary atomizer for color slips was merely a plain and obvious step which involved no patentable invention. A well-authenticated instance of the use of atomizers in applying slip colors to terra-cotta work at the Northwestern Terra-Cotta Works in Chicago some time prior to Miss Fry’s conception of the method appears in the evidence, and a plaque of Sarah Bernhardt, thus colored some time before July, 1884, — the earliest date fixed by Miss Fry of her conception of her improvement,- — has been produced in court. On the whole case, I have no doubt that Miss Fry’s patent is void for want of invention. Even if Walkup’s patent had been limited — as it was not — to the application of pigments to canvas and paper, the art of painting on those surfaces is so nearly allied to painting or decorating clay that it would have involved no invention to transfer the use of the atomizer from one art to the other. This principle was applied in Stearns v. Russell, 54 U. S. App. 591, 29 C. C. A. 121, 85 Fed. 218, and Steiner Fire-Extinguisher Co. v. City of Adrian, 16 U. S. App. 409, 8 C. C. A. 44, 59 Fed. 132, decisions by the circuit court of appeals of this circuit, and in the cases cited in those decisions. It is hardly correct to say that painting on clay is an art distinct from painting on other surfaces, so far as the mechanical method of applying the color is concerned. Walkup’s patent, as for the means of applying pigments to all kinds of surfaces, and the use of the atomizer to apply pigments to clay only, is a case “of applying what was on its face expressly intended for all arts to a special art for which it was peculiarly adapted.” Palmer v. Manufacturing Co. (C. C.) 84 Fed. 454, 457. The decree of the circuit court will be affirmed, with costs.