55 F. 481 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1893
The suit is to recover damages for infringement of design- patent No. 18,703, granted .the complainant October 23, 1888. The defenses are, substantially, want of novelty and invention; failure to mark the rugs as required by law; and noninfringement. As respects the third — alleged failure to mark —no room exists for doubt; the proofs show compliance with the statute.
If the question what constitutes novelty, and invention, in the sense of the statute here involved, was now raised for the first time, I might possibly agree with the defendants. It has, however, been raised many times heretofore; and while the decisions are substantially harmonious, the expressions of commissioners and judges regarding it are not. I have examined the cases, but do not propose to discuss them. The application of expressions found in a few of them would, I think, overturn a majority of design patents granted, and many of those which have been sustained by the courts. It would seem absurd to say that the designs covered by these patents, generally, exhibit the exercise of “inventive genius,” as the term is commonly applied to mechanical inventions. Turning, for example, to the spoon and fork handle design in the hotlvcontested case of Gorham Co. v. White, 14 Wall. 511, nothing more is found than the skillful use of common scroll work, exhibiting little, if anything, more than good taste; and yet the question of novelty and invention was not even raised; the same may be said of the designs involved in a majority of reported cases. Some of the rules applied to mechanical patents are wholly inapplicable to those for designs. As said by the supreme court in Gorham Co. v. White: “To speak of the invention as a combination * * * or to treat it as such is to overlook its peculiarities.” Such designs generally, if not uniformly, contain nothing new except the appearance presented to the eye, by arrangement of previously existing material; such as lines, scrolls, flowers, leaves, birds, and the like.. The combination, where several separate objects are employed, need not be, and cannot be, such as this term signifies when applied -to machinery — “the parts coacting to produce a new and useful result” in the sense there contemplated. The object sought in a design is a new effect upon the eye alone — a new appearance; and the several parts need not have any other connection than is necessary to accomplish
In the case before us the object sought was a masonic design for decorating rugs, by means of which they might be made popular with members and friends of that and similar orders. He therefore selected certain masonic symbols, and grouped them in an orderly and tasteful manner so as to form what many would consider an attractive panel, large enough to cover the face of the rug. He succeeded in his object; the rng became popular, and met with active demand. The invention consisted in the conception of this design and carrying it into practical effect.
The allegation that the invention was made by the patentee’s draughtsman is not sustained. The patentee' conceived the idea and the manner of carrying it out. It was not necessary that he should do the drawing. Sparkman v. Higgins, 1 Blatchf. 206.
Did the defendants infringe? They copied the rug literally, except the border. In the printed drawings which accompany the patent the border is so imperfect that the peculiar character of its figures cannot be ascertained. The rug copied was manufactured under the patent with an oak-leaf border, which the proofs show corresponds with the photograph of the original design deposited in the patent office. I do not, however, deem this important The distinguishing and dominating feature of the design is the panel. A common observer would not discover any difference between the plaintiff’s and defendants’ rugs, granting that the borders are dissimilar. As said in. Gorham Co. v. White, this is the test. The difference between the spoon and fork handles there involved, was more likely to be seen than the difference between these rugs, and