Cheney Bros. v. Weinreb & Weinreb

HAND, District Judge (after stating the facts as above). The demurrer, in my judgment, is entirely without merit, and contrary to any -reasonable implication of the words of the statute. Section 4933, Rev. St. (U. S. Comp. St. 1901, p. 3399), provides that: “All the regulations and provisions which apply to obtaining or protecting patents for invention or discoveries not inconsistent with the provisions of this title shall apply to patents for designs.” The demurrant relies on the provision in section 4888, Rev. St. (U. S. Comp. St. 1901,' p. 3383), that the inventor shall file in the Patent Office “a written description of the same.” The only effective way of describing the design is to say that it 'is the design applicable to textile fabrics and then refer to the design itself. Of course, I do not mean that the design cannot also be described in words; but I think it confusing and useless, provided there be some writing to indicate upon what character of goods the design is to be applied. In corroboration of this conclusion I may consider the uniform practice of the Patent Office itself for many years. Being the construction of a statute adopted by a co-ordinate branch of the government, this is an interpretation entitled to much weight under well-recognized principles. I also think the decision in point in Tompkins Company v. New York Woven Wire Mattress Company, 159 Fed. 133, 86 C. C. A. 323. In that case a design patent was declared invalid by the [533] Circuit Court of Appeals for the Second Circuit because it was impossible to tell from the design, without further description, just what the design was. Had the patent been invalid in any event for lack of a written description, the court would have found it unnecessary to enter into the discussion which it did. It would have been enough to say in that case that, as there was no written description of the design, the patent was invalid. The case relied on by the demurrant of Bennett v. Carr, 96 Fed. 213, 37 C. C. A. 453, is not in point. There the statute specifically provided for both a photographic and written description. The court had no alternative there but to enforce the statute as was provided. Here, as I have said, there is a written description of the patent, although it is not self-subsisting without a picture of the design. I cannot think that Congress could have any such absurdly redundant intention by the words of section 4888, “a written description of the same.” Demurrer overruled, with costs; defendant to answer on the next rule day.