Ludington Novelty Co. v. Leonard

• Decision Date: 08 December 1903
• Docket Number: 50.,49
• Citation: 127 F. 155
• Parties: LUDINGTON NOVELTY CO. v. LEONARD et al. SAME v. FISHER et al.
• Court: U.S. Court of Appeals — Second Circuit

127 F. 155

LUDINGTON NOVELTY CO. v. LEONARD et al.

SAME v. FISHER et al.

Nos. 49, 50.

United States Court of Appeals, Second Circuit.

December 8, 1903

Charles H. Leonard et al., the defendants in the first of the Above-entitled actions, are doing business at Grand Rapids Mich., and manufacturing, among other things, certain game boards which were offered for sale in the Southern District of New York by Alfred J. Fisher et all, the defendants in the second of the above-entitled actions. The complainant, a corporation located at Ludington, Mich alleges infringement of two separate patents owned by it, and also infringement of its common law and registered trade-mark 'Carroms.' The complainant also charges the defendants with unfair competition in trade.

The Circuit Court decided that the patents, if valid, were not infringed, and that there was no proof of unfair competition as distinguished from the mere infringement of the trade-mark. From those portions of the decrees holding no infringement of claims 1, 3 and 6 of the Haskell patent and that the defendants were not guilty of unfair competition the complainant appeals.

The Circuit Court decided further that the complainant had a valid trade-mark in the word 'Carroms' as applied to game boards; that the defendants infringed and that the use of the trade-mark by them should be enjoined. From this portion of the decrees the defendants appeal.

Fred L Chappell, for complainants.

A. C. Denison, for defendants.

Before LACOMBE and COXE, Circuit Judges, and HAZEL, District Judge.

COXE Circuit Judge.

We are satisfied with the disposition made of the Haskell patent by the Circuit Court. If valid at all, in view of the circumscribed field in which the patentee was compelled to operate, it is manifest that the claims must be limited to cover the precise structures described and shown.

Regarding the first claim of the Haskell patent, the distinguishing feature of which is a 'a base line on each side of the board extending across the board from the innermost portion of the pocket opening to the corresponding portion of the opposite pocket opening,' we are inclined to the opinion that the finding in favor of the defendants should have been based upon want of patentability rather than noninfringement. The line in question is drawn around the board extending across each side from the innermost portion of the pocket openings and is intended to indicate the location from which the disks are to be played. A substantially similar line appears on the defendants' board, but we think it required no exercise of the inventive faculties to draw a line parallel to the rim of the board in all essential particulars like the balk line of a billiard table. The drawing of such a line was within the skill of the calling and was the work of the artisan and not of the inventor.

The assignments of error do not challenge the decision of the Circuit Court in so far as it relates to the...