'927'
,.,.,,'
I.DJllltGW PA.'I'JIlft8-ANTIOIPATION-GLA,88 BOTTLBB AND JA.B8. of,
DeBifPl.tJ&tent No. iBSUed 18S'1 to.DanielO. Ripley, for footed bot'ties, an,d, 3'ita, consisting ,',il. ssphS,riCa!, b,ody, a ,Ag;red, ','ring-n"eck, covering a zone 01 l,tI! a, " b<!4Yt 6pd hav\ng ... rai8ed patta"rn on [ts entire surface, was not, anticipated by des:gn8 havtnlf A general l'68/ilJI1blance thereto In aliape,buUaolrlng ,the ral86d omawentation ,lif the" neck. ', , ' '
L8.uol";;'lkJPBNOB,-MBTIlOJ> OJ' hODUC11iG.
autt, not inV91n tbe method of produclng the result, yet,lD aODslderfiigtbe gnestion'Of anticipatiot!.. tbe' com mll.y properly take Into cotlald, , t,,iOU,', "th,':"',,' tact. that the paten,tee invented tbe metbod: of making articles of ilaas-, wat:e ba'iJ).g a 14blown"'bQdy and a 14 pressed "neok, thereby rendering possible tbe raised' omamentation oUbe neck in the patent. " ,, l.8.ufll-CoNSTRUOTION-INTBRPRBT,,:TtoN OJ' WOUs. " ' Tb,e,wIIl'da of tb!! clailI1 a,tld specUicatlons,wbi9hretel' to the body'of theV8llSel '" '-globe-i1baped" or "spberical"n'lust be taken ,in tbeir ordinary. ratber than tbeir m8.tbematibal,'slgnlficatiOn, and infringement cannot't18 avoided by mel'elyelong'8.\to, o:vQid, ratber tban a !lpbere or globe. , ' , ',' In determining wbetber adeliign patent is infringed, the test Ii whetbertbere ta similarityiti appeara.uee; not to the eye of the expert, but.to tba.t of 'theC1r9lnl'l'Y obseryer,gl:ving suob attention as would ordinarily be given by a put: ohaRii" of'tbe article beirlng'tbedealgn. . ., OJ'INPBINGBMBN'l'-GBNBBAL
I. 8.ud-PKNALTY. , ;W,' court
"1887.. '
tbe of, patent Is deliberate and ...t ll. impoae upon tbe detelldant tbepena!ty of t2IiO provided for by Act Eltb.
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InEquity.
Suit by DaQielO."Ripley against the Elson Glass Com-
pany foJ;' infringerpent of a patent. Decree' for complainant. W. ' Sontand T.· B.' Kerr I for complainant. F.L. Dyer. and J. D. El8on" for respondent. JACKSON. Circuit Judge. 'Thill suit is, brought for the alleged infrinp ment of design patent No. 17,243, issued April 5, 1887. to DanielO. Ripley, tbecomplainant, "for anew and original design for glass bottles and referring to Figs. 1 and 2 of the accompanying dtawmgs,tlie specificatio1l8state that..... :. : . feature ofroy design consist$ oUbe globe-shaped body. II. andflgufearing or neck portion, a, surmounted on a zone of the spherical ·body,.b. ' ::Theftgured portion consilsts of a raised pattern. covering the, whole a; but the he/lds, fl. lJlay omitted, as shown iuFigure $,ThebQl1y,b, bas a foot, c. A lIuitable Is used with some witb others it ,is not., ,Ittherefore is no,t 'to be considered necessary 'to Is applicable to bottles. jars. pitchers. and aimilar footed
artldl..... ,.,
,
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.' ;",Tlle
'The, ,ffrst claim based. thereon ,is as follows:
for footed llI>ttles and jars, consisting of the spherical body. II; 'IIr,,ed, J,',ing-neck. a, cover,iOl{a zone of the body, t!; the ring baving a ' its entire surface. as shown ."JnMngement is charged only as to this first claim of the patent. The <cJ*D$e$;8(lt up by, respondent .in its answer are,: ,Firllt, invalidity oithe
928
nDERA L llEPOR'l'ER, vot
49.
patent, because anticipated by certain prior designs; and, Beetmrlly, . infringement. . After a careful examination and consideration of the evidence introduce(!.on it is Dot deetrlednecesaal'y"'tb review or set out in detail, the conclusions reached by the court upon the whole case the. following, viz. : '.. . That the. 4efElnse of and lack of invention in the patent is not sustained. shown onpll!.te 9 in defendanti eihibit "Albert Jacquemort's PubUcation," and the glass pitcher, shown on page 291 of defendant's·exhibit "Hamm'sCatalogue," chiefly relied on to establish this defenlle,while resembling to .'sOme extent the jar embodying complainant's design, cannot properly 'be said to anticipatti the latter's patent. expert witnesses some general tesemblance between said articles and the patent, aside from or without theornamentatiqpof the latter. But it wou.ld be giving to coJ;npl,iUnant's destgn too narro'w a construction to limit and confine it to the exact conformation of jar!lhown in the drawingsaccompariying the.8yecifications,ofthe patent,aQ.d to ignore the ornamentation of the pressed neck, surmounting the zone of the globe or spherical shaped pla.inbody.The 'design does not consist in.the precise shape of. the body of the jar, nor in the body with ihe neck attached, independent of the upon but is fou!ld in the att;i!ltic of all three features, whIch present agreeable contrasts, and render the article of manufacture attractive to the eye. Thus considered, it would vio_ta allsound:principle to disregard the pressed neck ornamentation, intellded to promote, and, by its contrast with the plain body of the article, actually promoting, !eSthetic effect, so. as thereby to open the way to destroy the design by showing that other features were previously in use. It is well settled that the patent is prima facie evidence andvillidity, whioh, ptesumption is only to ,be overco.me' by unequivoQaI proof. Miller v. Sm?Jh,5 Fed. Rep. v, Ilart, 20 Fed. Rep. Lehnbeuter v. HolthaU8,105 U. S.. 91i.Applyingtl;lis rule ,:to defendant's exhibits in connection with the other testimony in the case, the court is clearly oUhe opinion that cOIllplamant's pIJ.otellt was not ll:Uticipated thereby. On the contrary, the pri11lli4 ,of the novelty of the patent, instead of being overcome, is supported and established. be)'ond any rE'asonable doubt by the evidence introduced on behalf()f complainant. It is distinctly showJl that complainant \V1li! the first to produce a ,footed globqlll, or spherical bodied glass jar,having a neck covered with a raised. Prior to the date of his design, no practicable method of making articles of glassware having a "blown" body and "pressed" neck was known. Complainant is shown to have invented the method by which the 'body of the"glass jar or ()tller article of glaBs could be blown SO as to be of · rounded, globular; br spherical shape, and th,e neck be pressed, thereby exhibiting the ornamentation of raised figures upon the latter, while the two parts-neck and body.;...;.united in one integral artiole. While this suit does not involve the method of producing or accomplishing this result.
RIPLEY
v.
EIlSO'N GLASS 00.
929
it is very properly urged by counsel for compI4inant that the design should be considered as having originated with the invention of the method for giving .., But, without going further into details, the entire proof in. the case fails to establish the defense of in'V'alidityJnthe patent sued on! 2. That, the patent being valid, the first claim thereof is clearly infri:pgedby the defendant. This,. a8 a question of fact, is fullyestablished, not only by the testimony in the case, but also by the comparison of thlf ,exhibitsniade hy the court. It is shown both by inspection and by, the ,proof tbat defendant's article of manufacture is substantially the as of the complainant. Minor differences are pointed out by ingenuity of experts, but, notwithstanding such differences, there stm remains that su1?stantia) identity of appearance in the two designs which, under well-settled rules for testing the question, render defendant an infringer. It is not and cannot be qllestioned that the first jar manufactureq by defendant-like the small jar exhibited"""""7was almost an exact imitation of complainant's design. When defendant ceased, upon notice, to manufacture that article, it sought to accomplish the same result, and avoid the admitted infringement, by merely elongating the body of' its jar,' so as to make it more of oval than globular or spherical in it is too plain for discussion that complainant's designis not to be limited, or restricted to an exact globe or sph,ere in the body of the jar, but must be extended to any body that is globular or spherical,-pertaining to a globe or sphere. The defend!tnt's large jar is unquestionablysphencalin shape, and it is a mere pll1Y upon wordslL, distinction without any real difference-to call, it ,an oval or ovoid, and thereby escape the charge of infringement. When comspeeificationsand claim refer to the body of thl;l Jar being "gIobe-sllaped" or "spherical," these terms are to beunderstood,accordiog to their natural !tnd ordinary meanipglLndsignification, as fndicating' ,Covering a" body not ,mathematically exact in' dimensiOIl' but so. The terms are relative, and, as thus employed,emb+ace any shaped bodY that 'is globulll.ror spherical in character, such as an egg or acorn. 'To test the two designs by the te<;hnipal mathematical distinction between an oval or ovoid and Ii globe or sphere, would be not only to place an improper construction upon the langulLge of the patent, but would involve a total disregard of the well-settled principles laid down by the authorities for determining the question of infringement insll,ch,Gases! Since the case of Root v. ,Ball, 4 McLean, 17,7, (decided in 1846,) the rule applied in such cases is that "it is not nei:lessary, in order to constitute infringement,that,the thing patented should be adopted in every particular; but, if the design and figures were substantiallyadopted by the defendant, they have infringed the plaintiff's right. It is an infringeinent toaaopt the design ,so as to produce substllntially the same appearance." And upon the question of substantial identity 9f similarity in design patepts the to be employed or applied ill 'not the eye of the expert, but tbat of the ordinary observer, giving sucb attention as 'Would ordinarily be given by apurcbastJr of the article bearv.49F.no.1l-59
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prdinary' .glyiqg designs ar!! same; if the' resemhlanceis S'u'ch as to deceive, such an indll¢iIig hixn to one 811PPOliing it to, be ,ttl,e other.-the firSt patented is by the"other.";" l i ' , " " ',r:' ", . ' . ,
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, 0# iog wh'etiier two purchl\ser in, toe court has; large paWnt. The deSIgns, are, Ban. & ,A; v. 80. deliberate
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is subgtdhtially identical;Whfle ill desIgn upon" of
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'WhICh IS substantIally the. sa;me .rule "to'tBe, ,ordol1bt;reached the' eoncluslOn that the OpInIOn of the p0tlrt, fully sustam inspectiopb(tbearticles ' Root y. 4 McLe,nn, 171; Perry v; Std:rl'4:,Wall. 511; Miller 'v. Kibbe,lO 669; Woody. 475,i':f)HJfooB v. 18 Rep. 825; Tom-Iff.'! Xotk :Belting &: PackI
;
Which,
,Dolby,; 7
Str:ii4i
patent· waS and intentional as to warlliq.t the CoU:i1"ubder. the act of Fepruary 4, ,1887', upon the of the 8250,as i#ayed in the 'It','rollows fJ'lm:I,the that oompl8.inant isei)titlec.r toJherelief his1>ill;, and a decree in }tiS, T,he l1efendantitillbe'enjoined from infringement, be,cbarge9 jvith the of $250, will be mxe(f with {he costs of thasuit, and · r6ference for an account tQli profits :.by by comI
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1l :PATENT8 70S "'/"r:JDmage."
" .' Where infrlngeme,Qt damBgeis prellume4, owner,of the '.' ,ent i!l to' a reference for aoOOuntinlt,wlthdut'Sivfngspecifto evidence of ·
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,8.. the validity oftb&'agalij.ii.\complainant;s title thereto, and the the answer admits ratlroad " patent, infringement, the ,abllQlute i,nju,uotiop
aV/"I:nngthat the invention is of