is"'nowhere' desl?dbed. ,The 'question of not clear. Thepresumptioil Ofpatenbible det'liils 'of by tIle grant of the differefice' as, Idtet'·Jenik'tmtedt'Msllot been dvm-come: ' for an injunction and accounting as to cl:HriF8 of patent 383,258. As to reissueNoo 11,079, the bill may'be dismissed. The t() recover one-half of their costs.' " sAdENDORPH -y. aUGHES. (CIrcuit Gourt"E. D. Pennsyl1\T,Rnla. 1. DESIGN PATENTS-ANTIcIPATION. ,
Cdllstrudioti of
July 10, 1899.)
1'f two designsareM much 'alike that one may readily be taken for the ,otneroy anordillary observer, the ,earlier constitutes an' aintlcipation of the later, notwithstanding: differen,ces ill detail apd in nOIl-,essential matters. " ,
2. SAMI!J-METALI,W I:lmING FOR
The Sagendorph, patent, Nd. 17,235" for' a design for metallic siding for buildings,' which covers Ii representation' of raised brickwork with Intermediate depressed grooves curved In cross section, Is void. because of antic!, pationby the Hardy patent, No. a covering for the exterior walls {If bUildings.
Connolly, Bros., for complainant. , , Jame,s'S. Williams, for respondent' .:1
r.·,
.... }
McPHERSON, District The complainant is the owner of design pa;tentNo. 17,2305,. iss'iled 'April n,1897,theelaim of which is as follows: ," '''Insdesign for metalUcsidlllg for huMi'ngs, the representation of raised brlckwoI'k':wlth intermediate depressed',grooves * * * 'curved in cross section, supstll,ntially as ,sl1ow.n ap.d describejl."
HeaUegesthat the isj'n(finging the patent by manufacturing metallic siding nearly, if riot quite, identical in substance and appearance with the siding that he has been making and selling under his patent for several years. Infringement is not denied, if the patent' iff :valid; but the d,efendantdenies its validity upon two not new or original, but was grounds: ,(l)BeCallSe the design an imitation merely, and: not an invention; (2) Because, if the design be patentable, it'hadbeen anticipated by P. T.Rardy in June, 1875,'-patent No. 163,991 having been granted to him in that month for "a covering for the exterior walls . of buildings, composed of a sheet of lead or other soft metal, having impressed or otherwise formed upon its face the' configuration of brick, stone, or other facing usually employed' for walls, substantially as andfot the pur'pose specified"; and also because the complainant's design had been similarly anticipated by patent No. 296,647, granted in April, 1884, to Peter Toglio, for "imitation brick weatherboarding for frame houses, made with grooves on itssl1rface, treated in the manner described, stibstantiaJly as shown illld·for the purpose set forth." I sh;:.tll not consider the first gronndof defense, because I think the second ground has been established. . "The ti'ue test of identity of
PATEl!<T-BUTTO:N CO. V. PILCliER.
479
design is sameness of appearance,-in other words, sameness of effect upon the eye * * * of an ordinary observer." Smith v. Saddle Co., 148 U. S. 674, 13 Sup. Ct. 768. Trielj by this test, the design' has been' anticipated by Hardy's patent at least, and probably by Toglio's, also. There are some differences in detail. Only one surface of Hardy's siding is iritended to be presented to the eye, while either surface of the complainant's siding may' be thus presented; and the curves of the grooves differ somewhat. But these are not essential matters. To the ordinary eye, the two designs are so much alike that one may readily be taken for the other. I am of opinion, therefore, that the complainant's design was not patentable, because it was anticipated by Hardy's patent. The bill must be dismissed, with costs.
CO. v. PILCHER. (Circuit Court, D. Kentucky. June 3, 1899.)
P ATENTS-OONSTRUCTION . Al'D BUTTOKS. The Williams' & Lade patent, No. 439,920, for an improvement in but. tons, analyzed, construed, and hcldnot infringed. 2. SAME-AMENDMENT TO AKSWER.
Where written instruments in the nature of an assignment were filed in the. case subsequent to the original answer. and long before the..cause was submitted, held, that it was proper to .ailow an amendDlent to the answer to conform to these proofs. , . ,
George800kand W. B. Dixon, for complainant. L. N. Dembitz, for defendant. .. . & Lade, made application for a patent on buttons some time in the early part of 18!)O, and filed with their application drawings, specifi-
EV.ANS, District JUdge. , The complainant's patentees, Williams
cations; and claims. In .their application they made various claims, as will be seen from the file wrapper in evidence here, all' of which were rejected by the examiners as being already met by anticipations. Subsequently,. from time to time, they filed various amendments to their specifications and claims, to meet the objections of the examiners,. all of which were successively rejected for the reason that they presented no novelties; and finally, on September 22, 18!)O, they: filed an amendment, claiming u.s a novelty, and an improvement over the then known state of the art, the wedge of their button; stating the same to be the same length as the shank of the button, and that the small end of this wedge, when the buttons were fastened to the cloth, should be Ughtly compressed in the orifice in the plane of the base of the shank of the button, thus locking the two parts together, and thus retaining the two parts of the button rigidly in place against any strain. In their brief to the department, accompanying this last amendment, they state: . "Applicants' claims are now limited to a button in which the wedge Is SUbstantially the full length of the stud on the shank, thereby clearly distinguishing their button from Platt's; and it is because of this difference in construe-