Graff, Washbourne & Dunn v. Webster

• Decision Date: 11 March 1912
• Docket Number: 187.
• Citation: 195 F. 522
• Court: U.S. Court of Appeals — Second Circuit
• Parties: GRAFF, WASHBOURNE & DUNN v. WEBSTER et al.

195 F. 522

GRAFF, WASHBOURNE & DUNN v. WEBSTER et al.

No. 187.

United States Court of Appeals, Second Circuit.

March 11, 1912

Nicholas M. Goodlett, Jr., for appellants.

M. B Philipp and Cleon J. Sawyer, for appellee.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE Circuit Judge.

The applications for the two patents in controversy were filed on the same day, March 15, 1909. The patent for dish is dated May 18, 1909, and the patent for the border is dated May 25 1909-- seven days thereafter. The design for the dish is represented by the diagram attached to the patent. The drawing gives an inadequate and imperfect idea of the design when applied to a silver dish, but is, perhaps, as satisfactory a reproduction as can be expected when it is remembered that it is confined to a drawing in black on white paper, where no allowance can be made for lights and shades produced by the openwork and raised portions.

'The essential feature of the design is the flower leaf and scroll border A with the interior flat flower and leaf forms B formed by or resembling chasing or engraving.'

In the patent for the 'border-sections' the essential features are:

'The body A with edge scroll and leaf forms B, the festoonlike leaf form C, and the central figure D with flower form E.'

The drawing of the patent is evidently intended to represent an enlarged section of the border of the dish shown in the prior patent, where the drawing is on so small a scale as to leave some doubt as to one of its minor details. It is said that the open work, or slot piercing, in the border shown in the silver exhibits in evidence, is not shown in the drawing of the dish. However this may be, there can be no doubt that piercings plainly appear in the second patent where the silver portions are shaded and clearly described by reference letters. There can be no question that the white portions of the body A represent openings, precisely as the white portions between the pickets of a fence drawn in black on white paper represent the openings between the pickets. No one of ordinary intelligence would suppose that such a drawing represented a tight board fence.

The defendants have introduced a large number of exhibits showing designs for plates and other dishes having flower borders, leaf borders, scroll borders, and flower and leaf forms resembling chasing and engraving. They have not, however, produced any exhibit which shows these different elements assembled as in the Graff designs. It will simplify the discussion if it be at once admitted that each element of the patented designs, considered separately, was old and that sometimes two or more of them appear combined in the prior art. This does not invalidate the patents, unless it appears that they were so assembled as to form the designs of the patents. Indeed, it is manifest that a skillful designer, with the Graff dish before him, could construct a new and ornate design containing every element of that dish and at the same time presenting a totally different impression to the eye of the ordinary beholder. It is the design as a whole and not the segregated scrolls, leaves, flowers and forms which are united to produce the general effect, which must be considered. The situation in this respect is analogous to machines made up of a combination of old elements.

The machine produces a new result, the design a new impression upon the eye. To refuse...