Capex Co. v. Swartz
| Decision Date | 18 February 1948 |
| Docket Number | No. 9405.,9405. |
| Citation | 166 F.2d 5 |
| Parties | CAPEX CO. v. SWARTZ. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William A. Snow and Charles W. Rummler, both of Chicago, Ill., for appellant.
Harry H. Hitzeman, of Chicago, Ill., for appellee.
Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Defendant appeals from a judgment of validity and infringement of design Patent No. 132,997 granted to Pease July 7, 1942, upon application filed March 2, 1942.
The patentee claimed "The ornamental design for a game board or similar article, as shown." The drawing discloses a substantially square board on which are depicted ten bowling pins arranged in the usual bowling-alley formation. The area above the pins is colored blue, and that below the pins, red. Around the neck of each pin is a collar of red. On the fronts of the three foremost centrally placed is a pair of oval blue areas on which in turn are cross marks in black. Various numerals and written phrases appear likewise on the drawing, but these were removed from the scope of the patent by the patent office and constitute no part of the claimed invention. The design represents a game board against which darts are supposed to be thrown, the scoring system of the game corresponding to that of the game of bowling.
Under the pertinent statute, U. S.C.A. Title 35, § 73, any person "who has invented any new, original, ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof" may have a patent therefor. Obviously, such a patent, in order to be valid, must disclose a design "new, original, and ornamental," unanticipated and inventive in character. Zangerle & Peterson Co. v. Venice Furn. Novelty Mfg. Co., 7 Cir., 133 F.2d 266; Howell Co. v. Royal Metal Mfg. Co., 7 Cir., 93 F.2d 112; Taylor Instrument Co. v. Fee and Stemwedel, Inc., 7 Cir., 129 F.2d 156; and Battery Patents Corp. v. Chicago Cycle Supply Co., 7 Cir., 111 F.2d 861, 863. Under these and similar authorities in other circuits, designs must be tested by their "over-all esthetic effect." The law applicable to them does not differ from that applicable to other patents. A mechanical patent must disclose inventive novelty and utility; a design patent, inventive originality in design and ornamentation. Both require novelty, originality and inventive character.
Pease disclosed a design of bowling pins of conventional character, arranged in a conventional set-up against blue and red background. Gattrel, in Patent No. 128,368, July 22, 1941, claimed an "ornamental design for a game board." He, too, disclosed a square or rectangular board on which were depicted ten bowling pins, so designed and placed as to supply a scoring system in a dart game of skill. He placed the words he employed in places other than those where Pease located them. Sargeant, in No. 127,974 (issued April 21, 1941) likewise patented a design for a dart game board upon...
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