279 F. 856 | 8th Cir. | 1922
The appellee, herein referred to ás the p'aintiff, sued the appellants for infringement of design patent No. 56,860, for a design for a toy car, commonly called a “kiddy car,” to-D onald V. Davis, assignor of the plaintiff. The application was filed' in the Patent Office on March 31, 1920, and, as appears from the file wrapper, was rejected by the Patent Office on May 15, 1920, on Hanke 1,293,420, February 4, 1919, but on petition for reconsideration, filed' by the applicant on September 27, 1920, the patent was allowed on December 7, 1920, and letters patent issued on January 4, 1921. The specifications in the application are:
Figure 2 is a front elevation thereof.
Figure 3 is a side elevation.
Figure 4 is a rear elevation.
Figure 5 is a bottom plan view.
The claim is: “The ornamental design for a toy car, as shown.” The car is shown by the drawing filed with the application, and is -here reproduced.
The complaint originally only made the Metallic Industries a party defendant, but on its motion the Simplex Steel Stamping & Manufacturing Company was also made a party defendant. It is in the usual form, setting out the patent; that defendant had infringed it, and
The answer, in addition to the usual denials of the allegations necessary to secure letters patent, denies that it has infringed plaintiff’s design patent. It then alleges that the patent was obtained by plaintiff surreptitiously and unjustly, having been invented before his application by others, and gave notice that in support of these defenses it will in;roduce in evidence:
U. S. Patent No. Issued To
1,398,001 September 12, 1936, William N. Best.
1,297,282 March 11, 1919, Joseph F. White, deceased.
1,293,420 February 4, 1919, August Hanke.
l,c 33,370 March 9, 1920, Biehard U. Bailey.
In addition it is alleged that the alleged invention was known to and used in the United States, long prior to Davis’ alleged invention by a la-ge number of persons, naming nine persons and their residences.
‘A design, to be patented, under section 4929, Bev. St., as amended by Act May 9, 1902, 32 Stat. 193 (section 9475, U. S. Comp. St. 1916), must, in the language of the statute, be ‘new, original, and ornamental design for an article of manufacture not known or used by others in this country before his invention thereof.’ It must present to the eye of the ordinary observer a different effect from anything that preceded it, and render the article to which it is applied pleasing, attractive, and beautiful; there must be something akin to geiius, an effort of the brain, as well as the hand.”
That similar toy cars had been in use long prior to the plaintiff’s application for the design patent is undisputed. Mr. Davis also admitted that he obtained the car on which he filed his application for the design patent by purchasing a car which he knew had been made by the defendant Simplex Company. .
‘My improved vehicle may be constructed of metal, wood, or any other suitable material, although I preferably form it of metal.”
_ The decree of the court below is reversed, with directions to enter a decree for the defendants.