274 F. 747 | S.D.N.Y. | 1920
In this case the patent has, in my judgment, no patentability over Hogan’s original patent, even if there was nothing else in the case. It is exactly the same invention, except that the claims require that the lip or spout shall be at least as high as the level of the thigh supports. In Hogan’s patent, 651,310, that spout is only very slightly lower than the thigh supports, and the only distinction in the patent, whatever may have been the actual practice, is that the lip or spout shall be as high. Such a distinction would be a mere question of degree, and would not support a patent.
But when you come to look at the art it is perfectly clear that, even if there was any invention over Hogan, 651,310, in having the spout as high as the thigh support, it was anticipated by several patents. It is quite true, there is no exact anticipation of the whole patent in suit in
Finally, the proof from commercial user is inconclusive. So far as the patented pan has displaced the low front in hospital service, it is. open to doubt whether it is not as much from the cleanliness of its unitary structure as from the high front. Certainly in the plaintiff’s advertisements both elements are equally emphasized. That the patent may be the present preferred form I may accept; it will not make the element an invention, where the art had developed it so fully. Rather I attribute the success of the patent to the cheap and convenient design and structure of the article as a whole. Commercial success is notoriously a dangerous basis of invention, except when we can see that it depends altogether upon the actual elements which the patent adds.
The bill is dismissed, with costs, for lack of invention.
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