195 F. 522 | 2d Cir. | 1912
The applications for the two patents in controversy were filed on the same day, March 15, 1909. The patent for dish is dated May 18, 1909, and the patent for the border is dated May 25, 1909—seven days thereafter. The design for the dish is represented by. the diagram attached to the patent. The drawing gives an inadequate and imperfect idea of the. design when applied to a
“The essential feature of the design is the flower leaf and scroll border A with the interior flat flowin' and leaf forms B formed by or resembling chasing or engraving.”
In the patent for the “border-sections” the essential features are:
“The body A with edge scroll and leaf forms B, the festoonlike leaf form 0, and the central figure D with flower form B.”
The drawing of the patent is evidently intended to represent an enlarged section of the border of the dish shown in the prior patent, where the drawing is on so small a scale as to leave some doubt as to one of its minor details. It is said that the open work, or slot piercing, in the border shown in the silver exhibits in evidence, is not shown in the drawing of the dish. However this may be, there can be no doubt that piercings plainly appear in the second patent where the silver portions are shaded and clearly described by reference letters. There can be no question that the white portions of the body A represent openings, precisely as the white portions between the pickets of a fence drawn in black on white paper represent the openings between the pickets. No one of ordinary intelligence would suppose that such a drawing represented a tight board fence.
The machine produces a new result, the design a new impressiop upon the eye. To refuse patentability to a design because the separate elements are old, would he tantamount to denying originality to “The Lion of Lucerne” because other sculptors before Thorwaldsen had carved lions from stone. It would relegate “The Angelus” to obscurity because other artists before Millet had painted peasants at work in the harvest field.
This is the rule laid down in Gorham Co. v. White, 14 Wall. 511, at page 528, 20 L. Ed. 731. The court says:
“Tile purpose of the law must be effected if possible; but, plainly, it cannot be if, while the general appearance of the design is preserved, minor differences of detail in the manner in which the appearance is produced, observable by experts, but not noticed by ordinary observers, by those who buy and use, are sufficient to relieve an imitating design from condemnation as an infringment.
“We hold, therefore, that if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one, supposing it to be the other, the first one patented is infringed by the other.”
The differences do not affect the general appearance of the plates. Several of the changes are so minute that even an expert would have difficulty in detecting them at the distance of a few feet. Having seen the complainant’s design in a show case or shop window, the ordinary buyer would be very likely to mistake the defendants’ design for it if .seen in similar environment. This is the real test of infringement of design patents. If the ordinary buyer, having seen one of the complainant’s dishes and wishing to procure one like it, would be induced to buy one of the defendants’ dishes instead, it is enough. That he would be so deceived is plain, not only from the testimony that persons were actually deceived, but also from an examination of the dishes themselves. Their general appearance is so similar, that a minute and careful inspection is required to distinguish the differences.
The defendants’ infringement is aggravated by the fact that they use the design on plated ware, whereas the complainant uses it only on sterling silver. The purchaser is thus enabled to secure the design for about one-fifth of its cost, when sold by the complainant.
The argument based upon so-called “Fine 59,” is not well founded. The subject is treated at length in the opinion below and we concur in the conclusion of the judge that “Fine 59” has no appreciable bearing upon the issues in this controversy.
The decree is affirmed with costs.