DREYFUS V. SCHNEIDER.
DREYFUS v. SCHNEIDER and others.
((JiJrcuu Oourt, S.
n. New York.
The burden of proof is on the defendant to satisfy the court beyonda reason· able doubt that the defense of prior knowledge and use has been established, Evidence held insufficient.
To constitute an infringement of a design patent it issufllcient ifthe resem· blance of alleged infringing article to the patent is such as to deceive the ordinary observer.
In Equity. R. B. McMaster, for complainant. William H. O'Dwyer, for defendants. COXE, J. The complainant is the inventor of a new and original design for a pendant, for which letters patent No. 14,356 were issued October 23, 1883. The pendant consists of a. ring made of chenille, or other analogous fabric, suspended from a tuft, and a ball suspended in like manner in the center of the ring; tire thickness of the ring increasing from the bottom of the tuft to a point diametrically opposite. The defenses are want of novelty and non-infringement. It is argued in the complainant's brief that a portion of the testimony relating to prior use and knowledge is inadmissible under the pleadings; the defendants having failed in the answer to comply with the provisions of section 4920, Rev. St., in omitting to state the names and residences of the persons alleged to have invented or to have had prior knowledge of the patented design. The answer is not among the papers submitted, and therefore it is impossible to rule intelligently upon this objection; but a ruling is rendered unnecessary, as I am convinced that the testimony is not of that clear and convincing character required to overthrow the presumption of validity arising from the patent itself. The burden is upon the defendants to satisfy the court beyond a reasonable doubt that the defense of prior knowledge and use has been established. Coffin v. Ogden, 18 Wall. 120; Howe v. Underwood, 1 Fisher, 160; Shirley v. Sanderson, 8 Fed. Rep. 905; Green v. French, 11 Fed. Rep. 591; Walk. Pat. § 76. Tested by this rule the testimony of the defendants is wholly inadequate. It is too general, vague, and indefinite. Every fact and circumstance which might tend to raise a doubt as to the validity of the patent, and which is sufficiently explicit to admit of contradiction, is fully explained and answered by the complainant's evidence in rebuttal. Bearing in mind the rule with reference to design patents, that it is enough if the resemblance is such as to deceive the ordinary observer, (Gorham Co. v. White, 14 Wall. 511,) there can be no question that the pendants, marked "Exhibit A," are infringements of complainant's patent. The difficulty upon this branch of the case is with v.25F,no.8-31
the proof by which it is sought to connect the defendants with the infringing pendants. Though this evidence is not of the most convincing character, it was unquestionably sufficient to put the defendants upon their proof, and, as they have failed to deny the infringement after testimony was adduced which pointed to them with great directness as the wrong-doers, it is clearly the duty of the court to find against them on this issue. There should be a decree for the complainant.
CELLULOID MANUF'O Co.
(Oircuit Court, S. :D. New York. November 10, 1ll85.)
PATENTS FOR INVEN'l'IONS-CELLULOID COLLARS .AND CUFFS-PATENT 939 SUSTAINED.
On rehearing former opinion (23 Fed. Rep. 397) adhered to.
Motion for Rehearing. Edmund Wetmore, Edwin M. Felt, and John P. Adams, for the motion. Frederic H. Betts, Willia,m D. Shipman, and J. E. Hindon Hyde, opposed. "Before SHIPMAN and COXE, JJ. COXE,J. The argument that the patent in controversy was anticipated and void for lack of invention was fully presented upon the hearing of this cause in February last. 23 Fed. Rep. 397. It is now reasserted with much force and ability, but the foundation upon which it rests is identically the same. No additional facts are presented, no new evidence has been discovered, the record is the same and the premises are the same, but it is contended that the conclusion drawn from them was erroneous, and should now be reversed. To do this the court must hold that the Sanborn invention is invalidated by a patent, which was decided, after careful consideration, to be no barrier to the complainant's rights to recover. The contention of the defendant, both orally and in the brief, is based almost wholly upon the specification of the English patent granted to Alexander Parkes. In view of the prominence thus given to this patent we hav.e again examined its provisions, and are clearly of the opinion that it does not defeat the Sanborn invention in either of the particulars suggested. The Parkes patent was introduced· by the defendant with scarcely a word of explanation. The defendant's record is not before us, but, as the facts are now recalled, the only evidence on the subject came from the lips of the complainant's expert witnesses. From their uncontradicted testimony it appeared that there was a vast discrepancy between what Parkes actually accomplished and what he thought