Braddock Glass Co. v. Macbeth

DALLAS, Circuit Judge. By the decree appealed from it was adjudged that the letters patent No. 14,378, granted to George A. Macbeth, assignee of Henry Dietrich, on October 30,1883, for designs for lamp chimneys, is valid, and that it had been infringed by the defendants below; and thereupon a perpetual injunction and the payment by the defendants to the complainants of $250, being the minimum damages provided for in the act of congress of February 4, 1887, together with the costs of the suit, were ordered. The only assignments of error which have been pressed are as follows: “(1) Tbe court erred in holding that it was patentable merely to double the number of crimps at the top of a chimney. (2) The court erred in holding that respondents’ chimneys infringed. (3) The court erred in permitting the filing of a supplemental bill.” “(6) The court erred in sustaining complainants’ bill.” The decree does not embody a finding "that it was patentable merely to double the number of crimps at the top of a chimney,” and that position is not taken in the opinion of the circuit court, nor is it necessary, or even pertinent, to its conclusion. The argument for the appellants would be of greater force if the patent in suit, instead of being for a design, was for the mechanism of its construction. It has been made plainly obvious to us, and seems to be fully recognized by the trade, that the appearance of the patented design is very different from that of any other which had previously existed; and, this being so, the method of its production is irrelevant'. The novelty of a design is to be tested, not by investigation of the means employed for its creation, but by ocular comparison of the design itself with the prior designs which are alleged to be substantially the same, and when tried by this test the novelty of the design covered by the patent in suit is made quite apparent. The second assignment presents, conversely, the same question as the first, and for like reason cannot be sustained. The designs of the appellants unquestionably produce the same effect upon the eye as that of the appellees, and therefore the former conflict with the latter. The argument submitted in connection with the third assignment, and the ground upon which it is based, are stated in the appellants’ brief as follows: “No equitable relief was required at tbe time of filing of tbe supplemental bill. For twenty months tbe defendants bad been out of business, * * * and tbe complainants -were not entitled to an injunction. There was, therefore, no basis of equitable relief.” NOTE. For other cases involving a construction of this patent, see Geo. A. Macbeth Co. v. Lippeneott Glass Co., 51 Fed. 167; Macbeth v. Gillinder, Id. 169, 171. Root v. Railroad Co., 105 U. S. 189, is relied upon as an authority for this contention, but does not support it. In our opinion, the point was rightly disposed of by the learned judge below, who said: •‘Nor is there any reason why the injunction should not bo made permanent, though respondents have ceased manufacturing in this district. Mr. MeOloy, a defendant, and the other officers of the respondent company, are still associated in the glass business, and that they are now without the jurisdiction is possibly the more reason why, in this protracted litigation, there should he a decree and injunction which would avoid further litigation on the same subject-matter between the same parties in another tribunal.” The sixth assignment does not set out the particular error intended to be alleged. It therefore does not conform to the eleventh rule of this court, and, according to that rule, might be wholly disregarded. But we have fully examined the record, and considered the argument on behalf of the appellants, and are not convinced that any error is disclosed or has been made to appear. Therefore the decree is affirmed, with costs.