TMs case concerns generally the floor covering linoleum, and specially and from a patent standpoint only one kind, viz. “molded inlaid linoleum,” as distinguished from plain linoleum, painted linoleum, and straight-line inlaid linoleum. Plain, single-colored linoleum is made by passing between heated rolls a burlap backing and a superimposed layer of hardened linseed oil mixed with ground cork. It has been so made since 1860. Painted linoleum has figures painted on its surface, and it, too, has been made since 1860. The third, or inlaid linoleum, gets its name from varicolored inlays. Such inlays or figures are cut from rolled sheets and placed or inlaid on the burlap to form patterns, after which the superimposed inlays and burlap are by heat and pressure cemented together, with the result that the juncture lines between the different color inlays are sharp and distinct. It has been made since 1895. These three types were well known in the art, are not covered by patents, and with them, therefore, the patent in suit has no concern.
The fourth type is called molded inlaid linoleum, and it came into the art in 1880. It is a stencil process. A stencil, provided with sections in the form of the different parts of a desired varicolored pattern, is placed on the -burlap, and each section is filled with a loose granular mixture of linseed and cork of the desired color. The stencil being withdrawn, the burlap, with the superimposed stenciled divisions now making the desired pattern, then passes beneath a powerful press, whieh compresses the stenciled blocks and cements them to each other and to the burlap. The usual second pressing incident to linoleum follows, and the result is a smooth, even surface linoleum with the color pattern delineated thereon. It is to this fourth, or stenciled, molded type of linoleum, and to it alone, the patent in suit is limited.
Now, to appreciate the novelty and radical departure of the patent in suit from the status of the linoleum art, the all-important fact must be recognized that, ever since linoleum was made, it was made with an even, unbroken surface. This was natural. A smooth floor will not pocket dirt, and is adapted for walking and cleaning. By trade tradition linoleum was made smooth, and no one ever thought of any departure from this uniform and universal practice. The fact, without any proven contradiction, appears in the record.1
it will also be noted that, while the fourth, or stenciled, linoleum came on the market in 1880, it was not acceptable to the trade; a witness stating: “I think I stated we were up against that particular problem, and it was one that was reducing the sale of our molded linoleum goods. They were gradually going down hill; in some cases, possibly not going down hill, but standing still.” Indeed, this fourth type was being largely supplanted by the third or inlay type, and the decline in demand for it was such as to lead manufacturers to change their machines over to making the straight-line or third species. The proof of one witness was: “The molded inlaid linoleum business suffered severely from the straight-line inlaid after the advent of the straight-line. I know of one company who dropped 14 of the grid press operations due to the competition of straight-line, and they replaced the production with straight-line inlaid.”
“The reason for this is quite apparent. In the straight-line inlay process the pattern sections, cut from solid, hardened sheets, have distinct, sharply defined edges. Consequently the lines of these sharply defined edges are not changed by the subsequent pressure, and give to the product the straight-line character whieh has erystaled into a trade-name, and the trade product, “straight-line,” most in demand with the public. These straight-line linoleums, as we have said, largely supplanted the stenciled or molded linoleum, which came into use in 1880, because they substituted the desirable straight for the undesirable ragged edge lines of the molded linoleum. This ragged edge was due to the fact that, after the stencil pattern is removed, and the loose, granular, varicolored mixes are subjected to pressure, the particles move laterally, and the different colored pattern sections interlace and produce irregular lines between the different colored inlays. These facts are conclusively shown in the proofs printed in the margin.2 We *646will not discuss tlie reasons given in the proofs by architects, decorators, and dealers why the publie did not take to molded linoleum, hut the simplest and most satisfactory ground to us is, as stated by a decorator and writer on the subject, who says his objection to it is that “it looks just like what you may say a painted decoration on a floor, and therefore a cheap, inferior product, which, for want of a better article, was limited to kitchens, bathrooms, and the like.”
In this state of the art, in the face of all its hostile traditions, the patentees, who were employees of the plaintiff, took a startling step, one that flew in the face of universal practice slavishly followed in the whole floor covering art, and in taking that step utilized the ragged edges, which had condemned molded linoleum in the eyes of the publie, into an element of favor which led the rejected molded linoleum to outsell by leaps and bounds the straight-line product, and opened new fields of use for linoleum to which it had never aspired. This remarkable result was effected by the very simple thing of abandoning the time-followed practice of even-surfaced linoleum, by indenting the juncture which formed the objectionable ragged edges. Indenting leather was an art as old as bookbinding, and, indeed, the indenting for wall coverings of Linerusta Walton, which was but another type of linoleum, had been practiced for 30-odd years. But, in spite of these practices and uses being well known, it is strange no one had even thought of indenting linoleum, and herein lies the inventive thought; for, when onee thought of, the doing of it physically was but the indenting of a hitherto plane surface floor covering. But how out of the to be expected this thought was is shown by the proofs that, even when those skilled in the art were told of it, they distrusted it. In that regard we refer to the proofs in the margin.3
*647Seeing, then, that the indented molded linoleum was novel, proved useful, and built up from an old and dwindling product a really great business, we turn to a study of the patent in suit and the question of its validity. That patent is No. 1,630,085, granted May 24, 1927, to Humphreys and McCarthy, assignors to the Armstrong Cork Company, for linoleum floor covering and process of manufacture. It is expressly *648limited to molded, inlaid, varicolored linoleum, as we earlier stated; the specification stating: “The present invention relates to linoleum floor' covering and to the process of manufacture, and more especially to a linoleum having a molded, inlaid, varicolored pattern, brought into relief by having certain of the inlays sunk below the general surface level. The invention is particularly applicable to molded inlaid linoleums having tile patterns, which may be made to stand out by depressing the mortar joints.” It discloses a workable process and its product in these words: “Referring to the illustrated embodiment of the invention, reference numeral 1 indicates a sheet of linoleum having the usual burlap backing 2 and a layer of linoleum composition 3 applied thereto. The linoleum layer is formed of inlays indicated by reference numerals -4, 5, 6, 7, and 8. The inlays 4, 5, 6, and 7 simulate floor covering tiles, while the inlays 8 simulate the mortar joints between the tiles. The inlays 8 should be of a color varying from the color or colors of the inlays 4, 5, 6, and 7, in order to simulate the difference in color between the mortar and the tiles. s * * The inlay portions 8 are sunk or depressed into shallow grooves 9, as shown in Mgures 3 and 4, to simulate the depressed mortar joints occurring in tile floors. The pressed mortar joints bring the tile pattern into relief and made a linoleum of a much more attractive appearance than plane-surface, tile-pattern linoleum. The relief given to the colored pattern makes it stand' out strikingly. It also breaks up the smooth light-reflecting surface afforded by a plane-surface linoleum. In looking across a room toward a window, the colored pattern of a plane-surface linoleum may be lost in the reflected light, whereas the same pattern, when brought into relief by indenting certain of the colored figures thereof, is distinctly visible under the same conditions.”
Differentiating their product from straight-line linoleum, the patentees say: “The present invention relates to linoleum floor covering and to the process of manufacture, and more especially to a linoleum having a molded inlaid 'Varicolored pattern, brought into relief by having certain of the inlays sunk below the general surface level. The invention is particularly applicable to molded inlaid linoleums having tile patterns, which may be made to stand out by depressing the mortar joints, and will therefore be illustrated and described with particular reference to such embodiment of the invention; it being understood, however, that the invention is not so limited, but may also be embodied in other patterns.”
Claims covering process and product were granted, but, as the defendant’s practice is a duplication thereof, we refrain from discussing the same. After due consideration had, we find nothing to overcome the prima facie of patentability arising from the patent’s grant. It was a radical, original, and unlooked-for disclosure. The accepted tradition and settled practice of the art stood as an accepted fact, and an accepted bulwark to any such step or innovation. It gave new life to a shriveling product, and so used the shriveling element of that product as to inject new and broader life thereto. Its instant and initial reception by the public showed it met a real need, and that appreciation by the public of its worth, without the publicity of advertising, was the real basis which enabled subsequent advertising to aid in broadening its market. Its unlooked-for success is explained, to our mind, by viewing two strips of linoleum of the same pattern and subjected to the same heat and pressure; one having the flat surface of the old process, the other the indented surface of the new. Looking at them with the light at one’s back, they appear the same; but facing the light, and looking at them and seeing the difference between the dead, lifeless surface of the one and the bright-appearing surface of the other, with its clearly defined and outstanding patterns, one can sense the desire of the public for the one and its indifference to the other. It is such disclosures and improvements the patent system is meant to encourage by reward.
The decree below is therefore vacated, and the record remanded, with instructions to reinstate the bill and enter a decree of validity, infringement, and accounting.