Poole Bros. v. Isaac H. Blanchard Co.

UACOMBE, Circuit Judge (after stating the facts as above). The patent has the prima facie presumption of validity arising from its issue, strengthened by the circumstance that, although the application for the Brown patent, covering a device which defendant here contends is the same as Wilson’s was pending at the same time, the Patent Office did not declare or suggest an interference. There is some question whether the date of this Brown application was properly proved in this case; but, in view of the conclusion we have reached, that question need not be decided. The Brown device may be considered prior art. It is no nearer the Wilson device than other structures whose priority is conceded. Utility is established. There have been large sales. After the decision of the Court of Appeals in the Seventh Circuit, a licensee signed an agreement for a royalty of 5 cents on every calendar sold, covenanting that at least 65,000 would be sold each year, and actual sales have exceeded that number. The defendant certainly cannot maintain that it has no utility, since defendant itself uses it. The patent is in no sense a basic one. The art was crowded; but upon this record we do not see how it can be said that the particular combination of parts shown, described, and claimed is not novel. We find nothing which anticipates this particular combination. Undoubtedly it is a very simple thing, and it may seem to involve only trumpery changes from the structures of the prior art; but many thousands of people evidently prefer it to any of the numerous other calendars which are available. Since Wilson was the first to devise the peculiar structure which pleases them, we see no good reason why he -should not reap the fruits -of his ingenuity in devising it, so long as he is confined strictly to the novel construction which he did disclose. Parks v. Booth, 102 U. S. 96, 26 L. Ed. 54 ; Waterbury Buckle Company v. Aston, 183 Fed. 120, 105 C. C. A. 410. ' Defendant’s device is a Chinese copy of the patentee’s, and manifestly infringes. Decree reversed, with costs, and cause remanded, with instructions to decree in conformity with this opinion.