Baker v. Hughes-Evans Co.

270 F. 97 | 2d Cir. | 1920

HOUGH, Circuit Judge

(after stating the facts as above). [1] Evidence reveals, as the reason for all these patents, that for some years bathrooms have increasingly contained tubs which are “made a part of one or more walls,” or the tub is “set up with its rim projecting into the wall.” From this it follows that projecting soap holders and similar adjuncts are somewhat in the way. This has led to the insertion in the wall of accessories of many kinds; e. g., soap dishes, toilet rolls, etc.

In respect of the mechanical patent for the lip receptacle, it is particularly insisted that the “pair of spaced upright substantially rectangular sides” disclose (when combined with the “concavo-con-vex wall”) a device not only peculiarly easy to clean, but one well adapted to secure ease in wall insertion and strength when set in the usual cement.

We cannot agree with appellant that these advantages (assuming them to exist) constitute sufficient evidence of invention. Wall recesses filled with integrally constructed drinking fountains, medicine closets, urinals, etc., are confessedly, old.¹ To make a soap dish or any other toilet accessory in such shape that it would be convenient for the tile workers’ purpose amounted on the evidence to no more than the effort of the “intelligent artisan” referred to in New York, etc., Co. v. Sierer, 158 Fed. 819, 86 C. C. A. 79.

The flush receptacle patent consists essentially in cutting off the lip of the wall-inserted soap dish and providing backwardly sloping ribs to keep the soap in place and forwardly sloping channels for drainage. When such a device is put up over a “set-in” bath tub the drainage is said to flow into the tub without offending even the neatest housewife. Whether the embodiment of this idea of oppositely sloping ribs and channels constitutes invention is a question not necessary to answer in the abstract; the history of the device provides a rule of decision.

The drawing and specification of the flush reccptable patent shows that across the upper portion of the open face is a grip or handle integral with the soap holder itself. This was required by the builder of a large hotel recently completed in New York City, and was intended to insure the safety of one using a shower bath fixed over a set-in tub. The hotel builder knew and declared what he wanted; his architect communicated the requirement (in effect) to plaintiffs and to defendants. On evidence which we can hardly regard as conflicting, we find that the designers of both parties to this litigation promptly and easily produced the same solution of the problem, if it can be called one. This suggests application of the principle announced by Townsend, J., in Thomson-Houston, etc., Co. v. Lorain, etc., Co., 117 Fed. 253, 54 C. C. A. 285, viz.:

“Where a number of workers in a single field, when confronted by an obstacle to the development of a device, naturally, and practically contemporaneously, independently substitute one well-known material for another, • * * the presumption is raised that such workers rightly regarded the substitution as a mere improvement, * * * such as would be adopted or selected by the skilled workman.”

The subject-matter of that litigation was different from and far more difficult than that now before us, but the rule is similar. It is not one of law, but of evidential values, and is that, when a matter of no complexity is promptly and easily solved in an obvious way by independent workers, invention can rarely be found in the solution; and we can find none in this patent.

The design patents may be considered together. That for the lip receptacle is open to the criticism that its desirable features are functional rather than ornamental. Weisgerber v. Clowney (C. C.) 131 Fed. 477; William, etc., Co. v. Neverslip, etc., Co. (C. C.) 136 Fed. 210, affirmed 145 Fed. 928, 76 C. C. A. 466. It is true, as pointed out in Bayley, etc., Co. v. Standart, etc., Co., 249 Fed. 478, 161 C. C. A. 436, that the same device or article may exhibit patentable mechanical invention and a patentable design; but it is not true that the design can ever be used to appropriate (per se) the mechanical function. The two inventions must be separable; otherwise, it would be a contradiction in terms to grant two patents for them.

We are, however, unable to discover any excellence meriting the protection of a design patent either in the lip receptacle or the hooded one.

[2] We adhere to the opinion that mere change in construction, displaying no originality and no added beauty, cannot be the subject of a design patent. Dietz v. Burr, etc., Co., 243 Fed. 592, 156 C. C. A. 290. A subject-matter so utilitarian as the fittings of a bathroom is not far removed from the “‘sad iron” of Strauss, etc., Co. v. Crane Co., 235 Fed. 130, 148 C. C. A. 620. But, even if a soap dish may with difficulty lend itself to jesthetics, these designs, which involve nothing but a lip in one (obviously to catch drainage) and a hood on the other (obviously to keep out the spatter of a shower bath'), make no appeal to the eye, enabling them to escape from rulés stated in Bayley v. Standart, supra, and the decisions there cited.

Decrees affirmed, with- costs.

1 See especially Cassel, Br. 7,939, of 1901, Watson, Br. 2,818, of 1859, and the numerous trade catalogues in evidence.