Jockmus v. Leviton
| Decision Date | 29 October 1928 |
| Docket Number | No. 157.,157. |
| Citation | 28 F.2d 812 |
| Parties | JOCKMUS v. LEVITON et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Gifford & Scull, of New York City (George F. Scull, of New York City, of counsel), for appellants.
Howson & Howson, of New York City (Hubert Howson and Wm. S. Pritchard, both of New York City, of counsel), for appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge (after stating the facts as above).
We are content to follow the ruling in Imperial Glass Co. v. Heisey, 294 F. 267 (C. C. A. 6), that a catalogue distributed generally to a trade is a publication within Revised Statutes § 4886, 35 USCA § 31. It may indeed be that such a document was not a "public work" under the act of 1836 (5 Stat. 117), and that Parsons v. Colgate (C. C.) 15 F. 600, was rightly decided, though the brief comment in the opinion does not take the distinction. Reeves v. Keystone Bridge Co., 20 Fed. Cas. 466, No. 11,660, only threw out a doubt, and went off on another point. While it was laid down without discussion in New Process Fermentation Co. v. Koch (C. C.) 21 F. 580, 587, that circulars were not publications, it was unnecessary to the decision and certainly was not its chief reliance. Britton v. White Mfg. Co. (C. C.) 61 F. 93, was decided without discussion, and on the authority of the three cases, just cited, which support it only so far as we have said. The aggregate of these authorities is not so imposing as to cause us any hesitation in following the Sixth Circuit. On principle we are entirely in accord, for the purpose of the statute is apparent, and we ought to effect it so far as its language will allow. While it is true that the phrase, "printed publication," presupposes enough currency to make the work part of the possessions of the art, it demands no more. A single copy in a library, though more permanent, is far less fitted to inform the craft than a catalogue freely circulated, however ephemeral its existence; for the catalogue goes direct to those whose interests make them likely to observe and remember whatever it may contain that is new and useful.
Whether the cut, No. 712, in Gogarten & Schmidt's 1908 catalogue, was a sufficient disclosure is another matter. If the claims be strictly limited, it certainly was not, because it did not show how the end of the upper leg was fastened to the stud — whether as the plaintiff does it, or as the defendant, or in some other way. But, if the claims be read as they must be to cover the supposed infringement, we do not see what can be thought missing. That it was an adjustable candle socket the text itself declares; how its adjustment was to be made the cut makes plain beyond chance of mistake. The socket at the top is plainly for a bulb and the screw thread at the bottom to fit upon the pipe terminal. The jacket was represented by figures 713 and 714, and the whole of this very simple invention was before the reader at a glance. We know of no rule that figures can never of themselves be an adequate anticipation of mechanical inventions, as of course they must be of designs, and we can see no reason for importing into the statute an...
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