A bill of complaint, alleging infringement of patent No. 838,155, issued to John Wl. Young, December 11, 1906, for a “method of diecorating pottery,” was dismissed by the court below on account of invalidity óf the patent, and complainant appealed. Further details are found in the opinion of the court below.

We regard the early use by Crandall and Fidlar as sufficiently well established to satisfy even the strict rule of proof required! in such cases; and in view of the fact that they used the very method of the patent for marking names, numbers, descriptive words, and large-figured decorations upon water jars, filters, crocks, etc., there remains only the question whether there was any invention in applying this same method to stamping more elaborate decorations upon smaller and thinner stoneware — the mechanical difficulty of the stamping operation being somewhat increased by the more fragile character of the ware, thus requiring a greater elasticity in the backing of the rubber stamp. We think there was, in this new application, no invention, under the rule of mere change in degree applied by this court in many cases, among them Steiner Co. v. Adrian, 59 Fed. 132, 136, 8 C. C. A. 44; Galvin v. Grand Rapids, 115 Fed. 511, 517, 53 C. C. A. 165; Bullock Co. v. Gen. Electric Co., 149 *263Fed. 409, 417, 79 C. C. A. 229. It is not a question oí transfer in analogous arts, for the' two uses were in the same art. We cannot regard the case of Warren Bros. Co. v. Owosso, 166 Fed. 309, 92 C. C. A. 227, as pertinent. The point there involved, in comparing" the sidewalk and the street pavement, was not the degree of use, but the kind of use. It was thought that the conditions attending use for heavy vehicle traffic and use for foot traffic were sufficiently different to make them distinct.

Appellant insists that the Pidlar deposition should be suppressed, and not considered, because taken in pursuance to an amendment of the answer, which amendment was procured by misleading the court below as to the degree of diligence the defendant had exercised. The matter of suppressing this deposition for this reason was within the discretion of the trial judge, and] we are not called upon to review his action.

The decree will be affirmed, with costs.