Pashek v. Dunlop Tyre & Rubber Co.

• Decision Date: 24 June 1925
• Docket Number: No. 971.,971.
• Citation: 8 F.2d 640
• Parties: PASHEK v. DUNLOP TYRE & RUBBER CO.
• Court: U.S. District Court — Northern District of Ohio

8 F.2d 640 (1925)

PASHEK v. DUNLOP TYRE & RUBBER CO.

No. 971.

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

June 24, 1925.

A. E. Merkel, of Cleveland, Ohio, for plaintiff.

Hull, Brock & West, of Cleveland, Ohio, for defendant.

WESTENHAVER, District Judge.

The bill is based on and charges infringement of design patent No. 52,962, issued February 4, 1919, to plaintiff. The patent is for an ornamental design for an automobile tire. The ornamentation is applied to the tread surface. It consists of a central circumferential strap or ridge, continuous grooves on each side thereof, except as broken by lugs connecting the central strap with the skid pads, and a series of skid pads on each side of said grooves, with rearwardly inclined grooves or openings between the pads. Each pad is connected with the circumferential ridge by a narrow lug, some times called a flow bar, from the function performed by it during the process of molding the tire.

Defendant's tire is likewise covered by a design patent, 62,172, issued to Wallace Henry Paull April 3, 1923, on application filed July 25, 1921. The two designs are almost identical. There are minor differences in the shape of the skid pads and in the lugs or flow bars. In plaintiff's design, the flow bar is of substantial width and strength, whereas defendant has striven to eliminate the flow bar as far as it can be done, while permitting it to perform the required function during the process of manufacture. It is much narrower and less substantial. It is defendant's claim that this flow bar is a disadvantage in a finished tire, and would be removed before the tire is sold, except for the expense of the additional operation. In use it is said to break down and disappear soon after the tire is put in use, so that the circumferential grooves are practically continuous. Despite these differences, however, I am of opinion, if plaintiff's design patent is valid, infringement is fully established.

No question of unfair competition enters into this case. Tires were manufactured embodying plaintiff's design during a period of some two years between 1917 and the earlier part of 1920. No claim is made that the appearance thereby imparted to the tire has become familiar to the public as identifying the tire as any maker's product. This tire appears to have disappeared from the market before defendant began the manufacture of a tire embodying Paull's tread design, and defendant's tires with this tread have been manufactured, sold, and used in large quantities since 1921.

The only question, then, in the case, is whether or not plaintiff's design patent is valid. Its validity is challenged on two grounds: (1) That an automobile tire tread is not a proper subject of a design patent; and (2) that plaintiff's design does not, in view of the prior art, involve either patentable novelty or invention, beyond the expected skill of a trained draftsman.

1. In my opinion, an automobile tire tread is not a proper subject for a design patent. All tire treads involve more or less similar features. The tread surface is broken up and given certain characteristics for reasons of function and utility. It is and has long been quite common to use one or more circumferential ribs with circumferential grooves, more or less continuous, disposed on each side thereof. Skid pads or raised surfaces, of various shapes and sizes, have likewise long been common in the industry. The earliest, and perhaps best known, is the Goodyear diamond-shaped all-weather tread. The advantages thereby obtained are grip and...