194 F. 871 | 6th Cir. | 1912
On April 20, 1909, the complainant obtained a patent, No. 39,921, for a design for bottles, claimed to be new, original, and ornamental. He sued the defendant for infringement. The patent was held invalid on demurrer, as not involving the exercise of inventive genius, and the bill was dismissed. The case is here to secure a reversal of the Circuit Court.
His claim is for the ornamental design for a bottle shown by the two figures appearing in his patent. The description and claim are sufficient. The purport of the description is that what the drawings represent as a whole is the invention, and it is that which is claimed when applied to bottles. Dobson v. Dornan, 118 U. S. 10, 14, 6 Sup. Ct. 946, 30 L. Ed. 63.
At the top of the neck is a lip, from the base of which the neck descends vertically until the enlargement of the interior of the bottle causes an outward curvature. When a diameter is reached which is slightly more than one-third of that of the main body of the bottle, the outer surface makes a brief vertical descent, causing an offset or collar-like effect, from the base of which an outward half-globular like expansion occurs until the full diameter of the cylindrical portion of the body is attained. The residue of the walls are perpendicular. Complainant’s counsel describes the'neck as terminating in a circular base or collar and as having the appearance of resting or bearing upon a flattened hemisphere, thus suggesting symmetry and strength. The bottle is an entirety and is devoid of all added ornamentation. The claim made in argument that the diameter of its cylindrical portion equals the height of the same portion is not borne out by an examination of the figure shown in the patent or by the sample exhibited for the court’s inspection. The height exceeds the diameter
“The law applicable to design patents does not materially differ from that in eases of mechanical patents, and all the regulations and provisions which apply to the obtaining or protection of patents for inventions or discoveries * * shall apply to patents for designs. * * * To entitle a party to the benefit of the act, in either case, there must be originality, and the exercise of the inventive faculty. In the one, there must be novelty and utility; in the other, originality and beauty. Mere mechanical skill is insufficient. There must be something akin to genius — an effort of the brain as well as the hand. The adaptation of old devices or forms to new purposes, however convenient, useful, or beautiful they may be in their new role, is not invention,”
“The court must be able, from the statements on the face of the patent, and from the common and general knowledge already referred to, to say that*874 the want of novelty and invention is so palpable that it is impossible that evidence of any kind could show the fact to be otherwise. Hence it must follow that, if the court has any doubt whatever with reference to the novelty or invention of that which is patented, it must overrule the demurrer, and give the complainant an opportunity, by proof, to support and justify the action of the patent office. Tbis is the view which has been taken by the Supreme Court, and the most experienced patent judges upon the circuit.”
To the same effect, see Milner Seating Co. v. Yesbera.
In considering a demurrer to a bill, such as the one before us, the court may take judicial notice of whatever is generally known within the limits of its jurisdiction, of facts of common and general knowledge tending to show that the device, process, or design patented is old or wanting in invention, and, if its memory is at fault, it may refresh the same by resorting to any means for that purpose deemed safe and proper to ascertain what facts were of common and general knowledge and had been published at the time the application for the patent was made. Brown v. Piper; American Fibre-Chamois Co. v. Buckskin Fibre Co.; Northwood v. Dalzell, Gilmore & Leighton Co.
The judgment of the court below is affirmed.