Circle S Products Co. v. Powell Products, 9780.

Decision Date13 May 1949
Docket NumberNo. 9780.,9780.
Citation174 F.2d 562
PartiesCIRCLE S PRODUCTS CO. v. POWELL PRODUCTS, Inc., et al.
CourtU.S. Court of Appeals — Seventh Circuit

W. A. Snow and Casper W. Ooms, both of Chicago, Ill., for appellants.

Robert C. Comstock and James R. McKnight, both of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.

MAJOR, Chief Judge.

Plaintiff is a partnership doing business in Chicago, and has since November, 1947, manufactured and sold photographic lampholders under the trademark Multee-Flood. Defendant Powell Products, Inc. is an Illinois corporation also doing business in Chicago, and since prior to August, 1947, has been engaged in manufacturing and selling photographic lampholders under the trademark Powelite. The defendant Herman Powell is the president of and a stockholder in the defendant corporation, which is the owner by assignment of United States Design Patent No. 148,806, issued to H. T. Lorenz February 24, 1948, upon an application filed January 8, 1947. It is around this patent that the instant suit revolves.

The action was instituted by the plaintiff for a declaratory judgment that the design patent was invalid, that there was no infringement on the part of the plaintiff and that the defendants were liable for unfair competition. The court made findings of facts, entered its conclusions of law and decided all issues in favor of the plaintiff. From its judgment of October 29, 1948, this appeal comes.

The patentee in conformity with the statute on design patents, 35 U.S.C.A. § 73, states that he has invented "a new, original and ornamental design for a photographic lampholder," and by figures shows and describes such design. The plaintiff raises the question that the design patent was not the invention of Lorenz, the patentee, but of the defendant Powell. It is stated in defendants' brief, "The mechanical features of the Powelite are without question, the invention of Mr. Powell, but the ornamental and artistic outer appearance of the Powelite, that is, the lines, impressions, configurations and the like, taken as a whole, which make an impression through the eye upon the mind of the observer, is the design, invented by Mr. Lorenz," and we are also informed by defendants' brief not only that Powell is the inventor of the mechanical features of the device but that they are "the subject matter of an application for mechanical patent filed in the United States Patent Office, Serial No. 662,750, dated April 17, 1946." Thus, we have a situation wherein the mechanical structure, including all of its elements, was conceived by Powell, which information was imparted to Lorenz for the purpose of constructing the device according to the disclosure of Powell, and when such construction was completed by Lorenz he claimed and was awarded the patent in suit on the design of the constructed apparatus.

The relevant testimony on this feature of the case is confined mostly to that of defendant Powell and the witness Kaufmann who worked for Lorenz. The patentee Lorenz was not a witness. The defendant Powell testified, "Well, it was the end of 1945 or some part of '46 where I conceived of an idea to make it easier for the rank amateurs to take pictures indoors." Powell also testified that he made a sketch of his invention and that "Basically, it was the same as the figure on this patent paper referring to Fig. 2 of the patent in suit." It is true that Powell when later called as a witness retracted to some extent what appears to be an almost fatal admission. Kaufmann testified that he talked with Powell toward the end of 1945 and that Powell "went into detail and explained about a unit that would have the lights mounted on it, and where you can mount a camera, and it would have a handle where it is made portable for use by a photo user." The witness testified that Powell made a sketch "to show indication where the electric bulbs would go, approximately where to mount the camera so you could get the proper holding unit." The testimony of Powell also discloses that the device suggested by him was changed in some respects by Lorenz, chiefly because of the material situation due to the war.

Much stress is placed upon the testimony of Kaufmann that "Mr. Lorenz hit on the idea of making it in a channel with fixed sockets." If there be any invention on the part of Lorenz, it must reside in the conception of this "idea," but even if this change constitute a patentable improvement, it was directed solely at the mechanics of the device, that is, its utility rather than its design. Moreover, the change was the result of an acute material situation occasioned by the war rather than by any attempt to improve the device, mechanically or otherwise.

We think we...

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