Follen v. Lambert Tire & Rubber Co.

• Decision Date: 09 July 1925
• Docket Number: No. 1350.,1350.
• Citation: 8 F.2d 303
• Parties: FOLLEN v. LAMBERT TIRE & RUBBER CO.
• Court: U.S. District Court — Northern District of Ohio

8 F.2d 303 (1925)

FOLLEN v. LAMBERT TIRE & RUBBER CO.

No. 1350.

District Court, N. D. Ohio, E. D.

July 9, 1925.

Smith & Freeman, of Cleveland, Ohio, for plaintiff.

A. E. Dieterich, of Washington, D. C., and George B. Pitts, of Cleveland, Ohio, for defendant.

JONES, District Judge.

This is a suit in equity for infringement of plaintiff's design patent No. 55,600, issued July 6, 1921.

The defendant tenders three defenses: First, that the patent is void for lack of invention because anticipated by prior invention and art; second, if the patent is an advance over prior art, it is limited to the exact details disclosed therein; third, non-infringement.

There is another reason for challenging validity, which does not appear to have been presented or urged by the defendant. It seems to me, however, that it is one which should be taken note of by the court in the determination of litigation of this character; that is, whether an automobile tire tread is a proper subject of design patent.

The primary function of the tire tread surface is to provide grip and traction to prevent skidding and slipping, and to stand rough usage and wear upon all kinds of roads, in good and bad weather. Novelty and utility in this respect form the real basis of the automobile tires' value for the purpose for which they are manufactured and used. It is the claim of the plaintiff that attractive and ornamental design facilitates sales, and is 50 per cent. of the value of the tire. I am disinclined to accept the claim that appearance counts for that much in the sale of automobile tires. An ornamental tire may be the impelling motive for inquiry by the prospective purchaser, but before the sale is made the customer must be convinced on the real considerations; that is, the primary functions above stated.

From a consideration of North British Rubber Co. v. Racine Rubber Tire Co. (C. C. A.) 271 F. 936, and the opinion of Judge Westenhaver in Albert Pashek v. Dunlop Tyre & Rubber Co. (Equity No. 971), 8 F.(2d) 640, in this court, decided June 24, 1925, I am inclined to the view that automobile tire treads are not the subject of design patent provided for by section 4929 of the Revised Statutes (Comp. St. § 9475). However, inasmuch as this question was not raised by the defendant, the defense as urged will be considered and decided.

The fact that the defendant has applied for, and others have secured, design patents on ornamental tire tread surfaces, does not give binding legal force to claims for patentability and validity of design...