'176
J'ED1!;llAJ,.· :l1EJ;'ORTEB, vol. 50.
ally declared so at the time. Whether Mr. Anderson then intended apthougb somewhat plying for a patent is nQt.c1ear. He qid tardily, apply. But whether the sum was disproportioned to the value of the special use is not important, in view of the fact that this use was distinctly in the minds of both parties, and that the money was paid and received on the basis of it. We do not see any force hi the suggestion that Mr. Anderson was constrained to sell by reasOQ 9f Mershon, Brown &Co,'s assertion that they could and would purchase elsewhere, for the purpose contemplated, if he No deceit or force was employed. The assertion was truej others'Viere selling the mantels·. He was left free to sell or refuse. It may be implied from the evidence that he hesitated, and considered the consequences before deciding. .He must have known that if he refused, and the samples Were obtained: elsewhere and his rights violated, the law would afford him protectionj and the fact that he did so hesitate and consider before sellinglends:add-itional strength to the inference that he consented to the uS'e contemplated, in consideration of the price received. The decree of the circuit court is therefore affirmed.
:SNOWDEN. (Otrcu't Oourt 01 ApP«,itB, TMrd. OWcu1.t. April 119, 189l1.) .
DIlIlIGtt EATBNTS-NoVEJ.TT-OiIAIR BAPP.
No. 18,405, 14. 1882. to' Henry H. Paine for a de.lgrtfor common round bow-back chairs, consisting in thft upper part of the bow rounds providlld with a IIhee. Qf·· .uitable material, as WOOd, bent to conform to ,1Ihe curvature of the bow-baok and rounds, leaving the rounds between the Illieet'and seat efposed, is void for want of novelty. Aftlrming 46 Fed. Rep. 189.
.
Appeal from the CircuitCdUrtof the United States for the Eastern District of Pennsylvania. . In Equity. Suit by Henry H. Paine agjainst William H. Snowden for infringement of a patent. The bill was dismissed below, (46 Fed. Rep. 189,) and complainlintappeals. Affirmed. Horace Pettit, for appellant. H. T. Fenton, for appellee. Before ACHEsON, Circuit Judge, and WALES and GREEN, District Judges. ACHESON, Circuit Judge. This was a suit in equity for the infringement of letters patent dated November 14, 1882, granted to Henry H. Paine, the complainant below and appellant, for a design for chairs. The pate[}.t has four claims. The first and leading claim is as follows: "(1) THe Unproved design for common round bOW-back chairs, consisting
In the upper part of the bow and rounds prOVided with a sheet of suitable material; as wood, bent toconforill to the curvature of said bow-back and
PAINE
v.
SNOWDEN.
777
rounds, leaving the rounds between said sheet and seat exposed, substantially as and for the purpose specified. " The second claim differs from the first only in providing that the back piece or shllet shall be perforated wood. The third claim is like the second, but calls for a perforated wood seat also. The fourth claim is the same as the first, with the addition of "ornamental nails" to secure the "curved perforated back piece" to the bow and rounds.. In his specification the patentee states: "I prefer to curve the bottom of the plate, E, to improve the design; but, if desired, it Illay be made perfectly straight." He further says: "The depth of the plate may be varied, and also its ornamentation; my invention cOlllprehending, broadly, the design when such a plate is arranged on the upper part of the bow and rounds, leaving the lower parts of the same {'xposed." The plate, E, is the sheet or back piece mentioned in the claims. The sheet or back piece shown in the patent drawing has a scalloped lower edge, and ornamentally arranged perforations; but it is quite clear that the patent was not intended to be confined, and is not confined, to the configuration or ornamentation there shown. Moreover, as we have seen, the depth of the plate or back piece "may be varied" at pleasure, and, indeed, under the terms of the claims, may be extended any distance down the back of the chair, provided, only, there is Bome exposure of the lower parts of the bow and rounds. Certainly, as a patent for l\ design,-a production intended mainly to appeal to the eye,-the patent in suit has a remarkable scope. But the court below having held that, in view of the prior state of the art, the patent was destitute of invention, we will confine ourselves to the single inquiry whether that' conclusion was correct. It appears that prior to 1882 Gardner & Co. manufactured and sold in the city of New York veneers, chairs, and settees. Their illustrative catalogue, issued and distributed in June, 1882, is an exhibit in the case, and it is shown that the cuts therein contained are true representations of the chairs which they manufactured and sold long before the date of Paine's alleged invention. Those chairs were of different forms, styles, and sizes. The variety was great. Some of the chairs had curved backs, to conform to the shape of the human body. The chairs were pl'ovided with perforated veneer seats. They also had pieces of perforated veneer, of various shapes and of ornamental appearance, fastened by nails to the backs of the chait'S, and in the instances where the backs were cu.rved the back pieces of veneer were fitted so as to conform to the curvatures. Sometimes the veneer back was continuous with the seat, an unbroken piece of perforated veneer being used for the purpose. In other instances the perforated veneer back piece and the seat piece were separate. Now, it is true that, among the Gardner illustrations, we do not find the common bow-backed chair; but everything else disclosed by Paine's patent is there to be seen. However, the bow-backed chair-that is, a
778 ·
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vol. 50.
1& . continuoos :the silfes.l1nd topo! the back, both ends being fastened in the seat'-wtis old. .'Did it, then, hi viewOf' what. had already been done, reqnire inventive genius, of any orderj to-apply. to the !curved back 'of such a chair a' piece of perforated of other'flexible material? The court below ruled that it did. nbt,and in that JUdgment we entirely concur. the proofs already discussed, this record contains REI an exhibit a patent, No. 179,721, granted on July 11, 1876, to Michael Ohmer"for an improvement in chairs; 'The illustrative drawing of that patent shows a common bow-back chair, with a wooden back piece secured by screws against the front of the top of the bow, and leaving the lower of the .fOunds exposed. Under the ruling in Gor1uJ.m OJ. v. White, 14 Wall.oU, the concluision, wethinkj is well warranted that Ohmer's chair baok and Paine's design are substantially identical'in appearance. But, at any rate, when the Ohmer chair back is added to the other proofs touching the prior state of the art, it becomes clear, beyond any sort of doubt; that Paine's design possesses no patentable novelty. We are altogether satisfied with the resultrea:ched in the court below, and accordingly the decree dismissing the hill is affirmed.
CoNBmJua'
GAS Co. OF DANVILLE AMERICAN ELECrR;J:C CoNSTBU<>O Tl0N .Co., LIMITED.
CO£reutt Court of Appeals. Thtrd Circuit. April 22, 1892.) L APJ'mAVIT OJ' .DBJ'BNSB""':AcTION ON WRITTBN CONTRACT-PAROL AGRBEJlBN'l'.
An aftidaVit.'6f defEioseto an aotion on a written contract to reoover the price of . an eleotric light plant that plaint1:lthad agreed, at .the time the contract was made, to exeoute as.tis/actory bond defendant against suits for infringement of ilertain patents, but had failed to exeoute suoh a bond. The written contract \lOntained no provision for indemnity, and the aftidavit neither alleged that 8uchproviaion Wll8 omitted by fraud 01' mistake, nor that defendant was induced . to execute tM writtenoontract by reason of the alleged parol agreement. Beld, that it muBt be preSUmed ,that the agreement for a bOnd was vel'bal, and, as evidence thereof would be inl¥1.missible, the am,davit was insufticient. 47 Fed. Rep. 48,aftirmed.· '. . . SAH....IN:rRING:BMBNT lOP PATB:h..".....CUIH POR IhlllAGBB,
S.
Apurohasl;lr of a machlue who has had the undisturbed use and possession thereof cannot, in the absence of fraud, withhold the because of an alleged liability on his part to a patentee"forinfringement ofhiarights in the use of the proper1;y.. 47 Fed. Rep. 48, afIlrmed.
8.BAMB-VAGUB AND INDBFINITB ALLBGATIONS.
The general alleg!ltionsthat plaintiff "had not complied with the contract," and that defendant "had already been 'put to great delay and exp<>lIUl'e and damages, to the amount of t,en thousand dollars," were too vague,.indefinite, and uncertain to : present a suftioient defense. ·47 Fed; Rep. 48,atll.rmed.
Error to the Circuit Court of the United States for the Western District of·Pennsylvania. by the American Electric Construction Company, Limited, against -the Consumers' Gas Company of Danville. An a.ffidavit of de-