251 F. 924 | D.N.J. | 1918
The Inflexible Company is the owner, by an assignment from Henry Schwarber, of design letters patent No. 50,080, issued to it December 19, 1916. The bill charges infringement by Abraham Megibow, and seeks permanent injunction, accounting, and damages. Both parties to this suit are manufacturers of laces and embroideries. The defenses are noninfringement, lack of patentable novelty, and prior .use.
The patent contains no written description of the design, but the specifications refer to the accompanying drawings. The design thus shown is for embroidered lace, and may be referred to here, as it was by witnesses for both parties, as a clover leaf design.
“The appellant states the question of infringement Is ordinarily to be determined by a mere inspection of: the complainant’s and defendant’s stands, and that the impression of substantial identity of appearance must exist, if infringement is to be found. In this the appellant is in error. It is not a proper test to place the two inkstands side by side, to determine whether or not there are certain differences. On the contrary, the correct test is whether the ordinary observer, giving such attention as a purchaser usually gives, would purchase the defendant’s inkstand, believing it to be that of complainant’s; and in applying that tost it is necessary to observe that the subject-matter relates to form and configuration, of which no one had ever seen the like prior to the patent in suit.” 220 Fed. p. 902, 13(5 O. O. A. 465.
The defendant’s design, thus tested, possesses substantial identity of appearance with that of the plaintiff’s.
“A design is patentable, if it presents to the eye of the ordinary observer a different effect from anything that preceded it, and renders the article to which it is applied pleasing, attractive, and popular, even if it is simple, and does not show a wide departure from other designs, or if it is a. combination of old forms.”
The plaintiff’s design fully meets this test. The presumption of invention that arises from the grant of the plaintiff’s letters patent is not overcome by the evidence in this case, and there is nothing on the face of the design that would justify this court in declaring that it was not the product of the inventive faculty.
In dealing with that character of evidence, Mr. Justice Brown, in the Barbed Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 450, 36 L. Ed. 154, said:
“In view of the unsatisfactory character’ of such testimony, arising from the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as Ihte party ‘ calling them would have them recollect them, aside from the temptation to actual perjury,' courts have not only imposed upon defendants the burden of proving such devices, but have required that the proof shall be clear, satisfactory and beyond a reasonable doubt. Witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upo.n for accurate information. * * * Indeed, the frequency with which testimony is tortured, or fabricated outright, to build up the defense of a prior use of the thing patented, goes far to justify the popular impression that the inventor may be treated as the lawful prey of the infringer.” 143 U. S. pp. 284, 285, 12 Sup. Ct. 443, 447 (36 L. Ed. 154).
In the instant case it is to be noted that Wolf, in his affidavit used with others in resisting the granting of a preliminary injunction, which preceded by several weeks the giving of the testimony referred'to, made no reference to such sketchbook, or to the fact that he had made the defendant’s design in 1915. On the contrary, he then said “that a short tipie before the 24th of July, 1916,” he designed and made a sketch of that design. The testimony of Wolf, which would carry the making of the defendant’s design back o-f July, 1916, on the 24th of which it was sold to the defendant, lacks corroboration, and, while it may be true, does not furnish that character of proof demanded by the cases. The testimony on behalf of the plaintiff as to the time when its design was perfected does not depend upon a single witness, or upon oral testimony alone. It satisfies the test referred to and estab
The plaintiff may enter a decree for injunction and accounting.