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Distinguished in Westinghouse etc. Mfg. Co. v. Triumph Elec. Co., 97 Fed. 101, 38 C. C. A. 65, holding configuration design of electric machine frame curvature of base the only originality claimed not patentable; Smith v. Whitman Co., 148 U. S. 678, 37 L. Ed, 609, 13 Sup. Ct. 770, holding, in some cases, where new shape or configuration of article of manufacture is claimed in patent, its utility may. be an element for consideration in determining validity of patent; Post v. Richards Hardware Co., 26 Fed. 619, mere substitution of one material for another in construction of article for ornament, the ornament to be of any approved form, cannot be patentable.

It is the new thing produced, regardless of the manner of production, which the law, allowing patents for designs, regards and protects.

Approved in General Gaslight Co. v. Matchless Mfg. Co., 129 Fed. 138, upholding Humphrey design patent No. 35,481, for cluster gas lamp; Bevin Bros. Mfg. Co. v. Starr Bros. Bell Co., 114 Fed. 363, holding Scranton design patent for bell design void, lacking patentable novelty; Western Electric Co. v. Odell, 18 Fed. 323, in holding design patents require as high a degree of exercise of inventive faculty as do utility patents; Britton v. White Mfg. Co., 61 Fed. 97, arguendo.

Designs are identical, within meaning of patent act, if they are so similar as to present same appearance to an ordinary observer.

Approved in Bush & Lane Piano Co. v. Becker Bros., 222 Fed. 904, 138 C. C. A. 382, holding Lane design patent No. 37,501 for design for piano case valid and infringed; Grelle v. City of Eugene, 221 Fed. 71, 73, 137 C. C. A. 18, holding Grelle design patent No. 43,338 for design for five-light lamp-post valid, but not infringed; Ashley v. Weeks-Numan Co., 220 Fed. 902, holding Ashley design patent No. 42,077 for design for inkstand valid and infringed; Howard Dustless Duster Co. v. Carleton, 219 Fed. 916, holding person's rights entitled to protection where ensemble of particular dress of article comes to be public guaranty of origin and quality; Mygatt v. Schaffer, 218 Fed. 831, 832, 134 C. C. A. 515, holding Mygatt design patent No. 37,967 for prismatic glass reflector valid and infringed by reflector differing only in slight change in contour; Bush & Lane Piano Co. v. Becker Bros., 209 Fed. 235, holding Lane design patent No. 37,501 for design for piano case valid and infringed; Dominick v. R. Wallace & Sons Mfg. Co., 209 Fed. 224, 126 C. C. A. 317, holding that where owner of patent for design for spoons and forks makes them only of silver, does not relieve one from infringement who copies design in plated ware; Theodore W. Foster & Bro. Co. v. Tilden-Thurber Co., 200 Fed. 56, 118 C. C. A. 282, holding Webster design patent No. 40,789 for

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design for clothesbrush valid and infringed; Macbeth-Evans Glass Co. v. Rosenbaum Co., 199 Fed. 156, 164, 165, 166, holding Evans design patent No. 41,785 for design for lamp-shade valid and infringed; Star Bucket Pump Co. v. Butler Mfg. Co., 198 Fed. 863, holding Bartliff patent No. 616,694 for pump-curb reservoir held not infringed, and design patent No. 29,190 for design for curb-pump void; Graff v. Webster, 195 Fed. 524, 115 C. C. A. 432 (affirming 189 Fed. 905), holding Graff design patents No. 39,992 for design of silver plates and No. 40,009 for border section of same valid, and infringed; Phoenix Knitting Wks. v. Rich, 194 Fed. 712, 713, holding Mead design patent No. 39,347 for design for neck scarf void and not infringed; Reymer & Bros. v. Huyler's, 190 Fed. 84, holding word "Metropolitan" where used by manufacturer on boxes of chocolates constitutes valid trademark and infringed by another using it giving package similar appearance; Phoenix Knitting Wks. v. Grushlaw, 181 Fed. 168, and Phoenix Knitting Wks. v. Bradley Knitting Co., 181 Fed. 164, both holding Mead design patent No. 39,347 for neck scarfs disclosed patentable novelty and was infringed; Ashley v. Samuel C. Tatum Co., 181 Fed. 842, holding Ashley design patent No. 37,504 for design for inkstand discloses meritorious design and held infringed by Hille's patent No. 40,125; Bolte & Weyer Co. v. Knight Light Co., 180 Fed. 414, 415, 103 C. C. A. 558, holding Weyer design patent No. 38,638 for lamps, not infringed; Williams v. Syracuse & S. R. Co., 161 Fed. 578, holding Williams design patent No. 31,838 for insulating plug for electric line supports, void; Crier v. Tunes, 160 Fed. 106, holding Young design patent No. 27,115 for sarcophagus monument void for lack of invention; Scofield v. Browne, 158 Fed. 306, 85 C. C. A. 556, holding Frenot design patent No. 35,922, for monumental head for brooches discloses patentable novelty and infringed; H. S. Earle Mfg. Co. v. Clark & Parsons Co., 154 Fed. 852, holding Earle design patent No. 30,478 for grass-cutting blade, and Tilden No. 32,227 for grass hook, infringed; James E. Tompkins Co. v. New York etc. Mattress Co., 154 Fed. 670, holding Tompkins design patent No. 37,649 for design for bedspring infringed spring sufficiently like it to deceive ordinary purchasers; Friedberger-Aaron Mfg. Co. v. Chapin, 151 Fed. 265, applying rule to design patent for trimming for ladies' underwear, though designs were easily distinguished when brought together; Baker v. Puritan Pure Food Co., 139 Fed. 683, holding label used as trademark infringed; Williams Calk Co. v. Neverslip Mfg. Co., 136 Fed. 215, 217, holding void Williams design patent No. 29,793, for horseshoe calk, and not infringed; Allen B. Wrisley Co. v. Iowa Soap Co., 122 Fed. 798, 59 C. C. A. 54, holding design "Old Country Soap" not infringed by "our Country's Soap"; Buerkle v. Standard Heater Co., 105 Fed. 780, holding Buerkle patent for case or shell design for water-heaters not infringed, both designs elliptical; Centaur Co. v. Marshall, 97 Fed. 789, 38 C. C. A. 413, holding

trade wrappers and labels used by defendant on bottles of Castoria not showing similarity to deceive purchasers; Myers v. Sternheim, 97 Fed. 626, 38 C. C. A. 345, admitting in action for infringement of design. patent, other design patents to show prior state of art; Seubert v. Santaella & Co., 36 App. D. C. 448, holding applicant not entitled to register mark "La Optima"; Hall v. Ingram, 28 App. D. C. 456, holding word "Zodenta" is not calculated to mislead or deceive average purchaser who may seek to buy "Zozodont"; In re Schraubstadter, 26 App. D. C. 334, holding in font of type addition of old waved outline to common form of letters does not amount to invention; In re Tournier, 17 App. D. C. 484, holding functional utility not to be regarded as controlling or even essential element in patent for design; Niedringhaus v. Commissioner of Patents, 2 McAr. (D. C.),157, holding design must be new and original and result of invention and genius; C. A. Briggs Co. v. National Wafer Co., 215 Mass. 106, Ann. Cas. 1914C, 926, 102 N. E. 89, name "Boston Wafers" held entitled to protection in States in which used; dissenting opinion in Nestle etc. Condensed Milk Co. v. Walter Baker & Co., 37 App. D. C. 155, majority holding trademark "Milkmaid brand" with picture, entitled to registration; McLean v. Fleming, 96 U. S. 256, 24 L. Ed. 832, in determining whether trademarks were identical; in dissenting opinion in Amoskeag Manufacturing Co. v. Trainer, 101 U. S. 64, 25 L. Ed. 997, majority holding, under facts, trademarks were not similar; Smith v. Whitman Co., 148 U. S. 679, 37 L. Ed. 609, 13 Sup. Ct. 770, applying rule where patent for saddle design was alleged to be for design identical with one already patented; Gilman v. Libbey, 4 Cliff. 478, Fed. Cas. 5445, trademarks are identical if resemblance is such as to deceive ordinary purchasers, and cause them to purchase the one manufacture, supposing it to be the other; to same effect are Liggett Tobacco Co. v. Hynes, 20 Fed. 884, Godillot v. American Grocery Co., 71 Fed. 874, 875, Lawrence Mfg. Co. v. Lowell Mills, 129 Mass. 328, 37 Am. Rep. 365, and Kann v. Diamond Steel Co., 89 Fed. 707, 32 C. C. A. 324; Whittall v. Lowell Co., 79 Fed. 793, holding a design which imitates the figures of a patented design in their characteristics, and produces same general appearance, infringes, though imitative figures are much smaller than those of patent; Jennings v. Kibbe, 20 Blatchf. 354, 10 Fed. 670, applying rule in suit for infringement of letters patent for designs, one for a "lace ruching," and the other for a "fringed lace fabric"; Perry v. Starrett, 19 Fed. Cas. 296, where, under rule, designs for stoves in question were held dissimilar; Tomkinson v. Willets Mfg. Co., 23 Fed. 896, a slight deviation in details will not relieve from allegation of similarity; Dreyfus v. Schneider, 25 Fed. 481, and Ripley v. Elson Glass Co., 49 Fed. 930, both following rule; Paine v. Snowden, 50 Fed. 778, 1 C. C. A. 661 (affirming 46 Fed. 190), applying rule in holding design for chair back, not distinguishable

from design previously patented; Anderson v. Monroe, 58 Fed. 399, 400, 7 C. C. A. 272 (reversing Monroe v. Anderson), 55 Fed. 404, where patent for a mantel design was held not to be an infringement on patent for similar design, previously granted; Kraus v. Fitzpatrick, 34 Fed. 39, and New York Belting Co. v. New Jersey Co., 53 Fed. 815, 4 C. C. A. 21, where patent for design, readily distinguishable from design in prior patent, was held valid; Falk v. Donaldson, 57 Fed. 35, where a lithograph, which, to eye of ordinary observer, reproduced material parts of copyrighted photograph, was held an infringement, although it was not an exact copy; Cone v. Morgan Co., 6 Fed. Cas. 269, Miller v. Smith, 5 Fed. 365, and Smith v. Stewart, 55 Fed. 483, all arguendo; Britton v. White Mfg. Co., 61 Fed. 98, little weight should be attached to evidence of experienced designers on question of infringement, since they are liable to be biased by the trained observation of the specialist. Modified in Dryfoos v. Friedman, 21 Blatchf. 566, 18 Fed. 826, holding articles must present same appearance to eye of person acquainted with article and its use.

Trademarks. Note, 23 Am. Rep. 30.

Invalidation of patent by prior invention once publicly used, though since disused. Note, 20 E. R. C. 527.

Miscellaneous.

Cited in Williams v. Brooks, 50 Conn. 285.

14 Wall. 531-535, 20 L. Ed. 738, MORGAN v. UNITED STATES.

Power to give or withhold relief, where claim is founded on wrongful proceedings of an officer of the government, rests with Congress.

Approved in Basso v. United States, 239 U. S. 607, 60 L. Ed. 464, 36 Sup. Ct. 228, holding Court of Claims has no jurisdiction of cause of action against United States based on tortious act of its agent by which claimant alleges he was deprived of rights under Constitution; Schillinger v. United States, 155 U. S. 167, 39 L. Ed. 110, 15 Sup. Ct. 86, holding Court of Claims has no jurisdiction of claim against government for a mere tort; United States v. Berdan Arms Co., 156 U. S. 566, 39 L. Ed. 534, 15 Sup. Ct. 424, and Belknap v. Schild, 161 U. S. 17, 40 L. Ed. 601, 16 Sup. Ct. 445, both holding, without consent of Congress, suit cannot be maintained against the United States for infringement of a patent; Christie Street Com. Co. v. United States, 129 Fed. 507, arguendo.

Under charter whereby the government assumes war risks and owners marine risks of vessel chartered to government in time of war, loss of vessel must be borne by owners where she is stranded in attempting to cross a bar, at the order of the government quartermaster, and against advice of captain, the risk being taken because of urgent need of troops.

Approved in New Orleans-Belize etc. S. S. Co. v. United States, 239 U. S. 206, 60 L. Ed. 230, 36 Sup. Ct. 78, holding United States not suable in Court of Claims upon claim for injuries to vessel chartered by it for military purposes which were received in services outside contract; Reybold v. United States, 15 Wall. 206, 21 L. Ed. 58, a similar casc, vessel being wrecked by ice while proceeding under orders from government.

14 Wall. 535-550, 20 L. Ed. 753, UNITED STATES v. JUSTICE.

Where claimant against government voluntarily submits his claim to properly constituted commission, which finds sum due thereon, and he accepts same, he cannot afterward sustain claim in Court of Claims for further sum, even though he gave no receipt in full.

Approved in Chicago & Milwaukee etc. Ry. Co. v. Clark, 178 U. S. 369, 44 L. Ed. 1107, 20 Sup. Ct. 930, sustaining payment received in full satisfaction where aggregate amount in dispute; Savage v. United States, 92 U. S. 388, 23 L. Ed. 662, holding where holder of treasury notes accepted payment for same in depreciated legal-tender notes, although under protest, he thereby waived all further claim against the government; United States v. Martin, 94 U. S. 404, 24 L. Ed. 129, where a receipt in full for a claim against the government, although less amount was received than was claimed, was held to bar any further claim; to same effect in Pray v. United States, 106 U. S. 595, 27 L. Ed. 265, 1 Sup. Ct. 484; Mason v. United States, 17 Wall. 73, 21 L. Ed. 566, holding where contractor, at suggestion of commission appointed to adjust claims between government and contractors, modifies his original contract and executes modified contract, he can claim no damages for breach of original contract; Chicago etc. Ry. Co. v. Clark, 92 Fed. 977, 35 C. C. A. 120, in discussion as to effect of acquiescence in an account stated.

Distinguished in Piatt v. United States, 22 Wall. 509, 22 L. Ed. 862, where by law the amount which the accounting officers could allow claimant was fixed and the claimant had, therefore, no option in the matter.

Part payment as satisfaction of claim against government, State, county or municipality. Note, Ann. Cas. 1914D, 828.

Accord and satisfaction by part payment. Note, 20 L. R. A. 798. Acceptance of partial allowance of claim by public body as accord and satisfaction. Note, 42 L. R. A. (N. S.) 113.

14 Wall. 550-553, 20 L. Ed. 739, UNITED STATES v. HUNT.

Not cited.

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