342
FEDERAL REPORTER·
. The 'lmprovementsrespectiiVely claimed for the patents in suit are' the extension of the key-post to its original length, (Gory cut it off flush with the plate,) and the 'substitution of intervening' spaces between the plates for the inclined and engaging side-walls of the Gory encased lock. It appears that the new lock was immediately adopted by the trade. Its sales have constantly and rapidly increased, and it is steadilydisplacing the old style Jock. To this circumstance eaehside appeals as decisive upon the question of patentability. The fact that any new device has commended: itselftothe public as practicable and desirable, and a· better one than' those which had preceded it, no doubt affords a safer criterion of inventive novelty than any subsequent opinion of an expert or intuition of a judge. The difficulty in the present case, however, lies in the application of that criterion. The lock which has thus won the public favor is the lock neither of the Orum nor of the Spiegel' patents. The locks sold by both companies (they are substantially alike) .have the extended front-plate fitting into a countersunk round-bottom,recess, (not shown in the Spiegel reissue,) and adapted to hold the lock so as to give clearance for an extended but without side-ribs under a rectangular selvedge (as shown in the Spiegel patent of 1885,-a mode of fitting which forbade the entire abandonment of hand;.cutting.) They have also the intervening spaces between the plates, (not shown in the OrumJ)o,tent,) securing, as it is claimed; abetter fit. There is evidence to sMw that both of these 'modifications have' contributed to commend the new the public favor. That it would have suc<--eeded with either one alone, however,the evidence does not show. The proof of acceptance by the public, therefore, falls short of the measure required to demonstrate, in the case of either patent standing alone, :tbe inventive novelty of.what seems priroojacie to be the prOduct of ordinary mechanical .Usual decree for in each
case.
UNT.E:RlIIEYER 11.: FREUND d I
al. . '.'
(l!if'ouit (JOt"", \ .
s. D. lfellJ' 1'"ork. '
January 15, 1889.) ." .
',.'
.
....
:I. PATENTSJ'OB INvENTIONS-DESIGN ',: Letters'patentNo. 15,121 granted July I, 1884, fora design for
" .
S.
which consists of 8 central coriventlon:al star, in wbich' any ornament msy : be set, Pla.c.ed. . .pon a larger st8.r.. iOf.l.eaves. haVing diamo.nd-sh8 ped p.rojec-. , u . tionsbetweeD i,ts points, both sta.rs being in bas-relief. held, not void for of noveItt. '. ' . . . . .
SAME.
. If a design presents a differen·t impression upon the eye from anytbingwhlch ; precedes if it proves t? be p1tla'illg" attractive, 8I!d pop,ular, if,ll creates a ' eVen though It bestmp,le, aod . ,.demand for the goods of ItS. . ' showawlde departure' from othel'designs, its use will be protected.' , . i'
-In Equity, ... ,Bill for infringement of a' patent fur a design. Rowland Oox) for complainant. . .
V.
343
F'rederic H. Bctt8 and -Samuel R. Bett8, for defendants. CoXE, J. This:isan equity.a.ctionofinfringemeilt, founded upon letters patent No. 15,121, granted to the complainant July 1, 1884, for a design for watch-caSes. The design consists ofacentral conventional star, in which anyomament may he set, placed upon a larger star of leaves, both stars being in bas-relief. ":Setween the points of the star ofleaves are diamond-shaped projections. The design was the result of considerable effort and industry. .It shows some genius, and it soon became popular with the public, and a source of profit to those who adopted it. The claiilis are as follows: '\(l)A'design for watch-cases, consisting of the conventional star, A, and the larger star, B, the points of which reprpsent leaves, the star, A, occupying the central field of the star, B, all being in relief, substantially as shown and described. (2) A design for watch-cases, l)onsisting of the conventional star, A, and the larger star, B, composed of leaves, and haVing between its points ornamental projections, C, the star, A. occupying the center of the star. B. all being in relief, SUbstantially as shown and described. (3) A design for ·watch-cases, consisting of the star, A, containing the ornament, D, the larger star, B, representing leaves, and having between its points the ornamental projections, C, and the star, A, occupyit)g the center of the star, B, allbtling in relief, substantially.as shown and described." The defenses are anticipation, lack of invention,· and non-infringement of thesecQnd. and third claims. The claims would have to be unreason· ably restricted to give the slightest plausibility to. the defense of noninfringement. . The two. designs look alike, and an ordinary purchaser CQuldnot detect the difference. The defendants in their circular of February 10, 1887 that they have made the design of the patent, and assert that they have a right to make it, and will continue to do so. Infringement is cleady established. Has novelty been negatived? The · patent is primaJMie evidence that the complainant was the first inventor. · Lehnbeuter v, Holthaua, 105 U. S. 94. He who asserts to the contrary must it beyond a reasonable doubt. The CJnua is upon hitn. The record discloses the usual conflict upon this subject. The witnesses do not agree. After the testimony has been read and weighed, the mind has not a decided impression either way. It is in doubt·. This is peculiarly II. case where light could be thrown upon the controversy were the court permitted to see the witnesses, and observe their manner while testifying. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favol'able impression. To state the proposition as fairly as the defendants Can, expect, the issue upon this branch of the case is involved in uncertainty. If the defendants' right to recover a sum of money in an ordinary action at law depended upon their establishing the affirmativeofthis issue, a verdict in their favor would, probably, not be distu.rbedby the court. If, however, the,c(}mplainant'R conviction of a crimedepeJldedupon the establishment by. the prosecution of the same proposition, ,11 verdict of guilty could hardly be sustained. The · jury most certait;Jly that they were 1l,Ot satisfied. beyond a
·
