262 F. 145 | 9th Cir. | 1920
The appellant brought suit for infringement of design patent 52,720, issued to the appellant on November 19, 1918, for “children’s rompers.” The court'below held that the patent was valid, and that the defendant Letts had infringed by manufacturing and selling garments of the type described in the proceedings as Exhibit No. 6, but had not infringed in the making and selling of certain other types of garments, known in the record as Exhibits No. 4, No. 5, and No. 8. From that portion of the decree the appellant appeals.
It will thus be seen that there is nothing new in any of the features of the appellant’s design. He but brought together elements that were old and well known. Single piece child’s rompers with belts were old. Square Dutch collars, were old. Ornamental stitching was old. Peg-shaped trousers were old. The fact that the elements were old, however, does not prove want of invention in assembling them into a single design, and in view of the fact that the patent was granted, and that the design was favorably accepted by the public, we are not convinced that the court below was in error in sustaining the validity of the patent.
“it must be construed together with the claim and drawing, as is the established rule in respect of other patents. The rules of interpretation are not different from those regulating other patents, and a design claim may (like any other) be restricted to the specific form shown.
And in Ashley v. Weeks-Numan, 220 Fed. 899, 136 C. C. A. 465, the court said:
“The patentee having a patent with written specifications relating to an entirely new form of inkstand, he is entitled, not only to the exact design shown in his drawing of the patent, but also to the protection of the court against the making and marketing of inkstands which contain the dominant features of the design described in the specification.”
As already shown, we have no means of knowing which, in the mind of the inventor, was the predominant feature of his design. It seems obvious that one purchaser might be attracted by the shape of the collar, another by the ornamentation stitched on the collar, cuffs, and knee bands, another by the belt with large buttons, and another by the flaring effect of the trousers. The garment known as No. 6 has all of the features of the patented design, excepting that the ornamental stitching is slightly different, and the collar, instead of being made square, is Y-shaped. This the court held to be an infringement and the ruling in that respect is not challenged by appeal. Exhibit 4 differs from the patented design in that there is no ornamental stitching on the Dutch collar or cuffs, and no belt with buttons, and it is distinctly different in the shape of the trousers, which, instead of flaring midway, carry side pockets flaring at the top of the trouser legs. Exhibit No. 5 has all the features of the design patent, except that it is not a single piece garment and has no ornamental stitching, and has two front pockets stitched upon the trouser legs. Exhibit 8 is similar to Exhibit 4, except that it has buttons upon the belt.
We do not think that the court below erred in holding that these garments do not infringe. In determining the question of infringement, both the character of the design and the nature of the fabric to which it is applied are to be taken into account. The differences in designs, -which under the patent law will avoid infringement, are differences which will attract the attention of the ordinary observer, giving such attention as the purchaser usually gives in buying articles of the kind in question and for the purposes for which they are intended. The evidence shows that at and prior to the conception of this design there wrere in use and on sale very many similar garments, with variations in design so slight as to leave to the ordinary observer the impression of a very general resemblance, and we must assume that to womankind, who are the purchasers in the main of this class of garment, these various coincident forms of garments were known, and whether such purchasers would be deceived into taking the garments which are alleged to infringe for a garment of the patented design would necessarily depend largely upon that general knowledge. There is no evidence that any purchaser has in fact been so misled.
The decree is affirmed.