Robertson v. Cooper
| Decision Date | 13 January 1931 |
| Docket Number | No. 3066.,3066. |
| Citation | 46 F.2d 766 |
| Parties | ROBERTSON, Commissioner of Patents, v. COOPER. |
| Court | U.S. Court of Appeals — Fourth Circuit |
T. A. Hostetler, of Washington, D. C. (Charles B. Rugg, Asst. Atty. Gen., and J. F. Mothershead, of Washington, D. C., on the brief), for appellant.
A. Miller Belfield, of Chicago, Ill., and Semmes, Bowen & Semmes, of Baltimore, Md., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.
This is a suit brought by appellee, Oswald Cooper, under section 4915 of the Revised Statutes (35 USCA § 63).
Cooper filed his application for a patent for a design for a font of type on May 23, 1923. The application was serially numbered Design 6262, and the type has been designated in this suit as Cooper Black. The application was rejected by the examiner. Appeal was taken to the Examiners in Chief, who reversed the examiner. The examiner made a further search and rejected the claim on additional art. Appeal was taken to the Examiners in Chief, who affirmed the rejection of the examiner, one member dissenting. Appeal was taken to the Commissioner. In this appeal the Assistant Commissioner affirmed the decision of the Examiners in Chief. Appeal was then taken to the Court of Appeals of the District of Columbia, in which appeal the court affirmed the decision of the Commissioner. The opinion of that court is reported in 57 App. D. C. 353, 23 F. (2d) 774, and pages 69 et seq. of this record. Cooper then brought this suit, and the bill, as originally filed, involved design application No. 6262 only. By supplemental bill plaintiff-appellee brought before the court his applications No. 6784 and No. 10,689. The court thereafter ruled that it was without jurisdiction to consider the two applications brought in by the supplemental bill and dismissed the supplemental bill.
The court below held in favor of the appellee and entered a decree authorizing appellant to issue a design patent to Cooper, from which decree this appeal was taken.
The main question involved was the patentability of a font of type called the Cooper Black. The Patent Office held that the design in question was not patentable because the same, or practically the same, design of type was known and used by others in this country, and was published prior to appellee's invention, and was published and in public use more than two years prior to the filing of appellee's application. The design of the font of type as filed with the Cooper application follows:
A number of designs of type claimed by the appellant to be similar were shown in the record, but the Commissioner relied principally upon the type used in the word "Asbestone," admittedly printed more than two years prior to the Cooper's application. The word as printed follows:
The judge below in his opinion, while admitting the great similarity in design as used in the word "Asbestone" and the design as used in the font of type upon which the application is based, apparently based his opinion upon the fact that there were comparatively a few letters in the word "Asbestone"; whereas, the application was for an entire font of type, and, therefore, could not be anticipated by the use of a few letters only. We cannot agree with this conclusion. It seems apparent to us that given even a few letters a skilled workman could construct an entire font of type of the same design, and that this, while it might involve a very high degree of skill, would not arise to the dignity of an invention. The English alphabet consists of fixed groups, such as the round letters c, e, o, C, G, O, Q, and the oblique line group, as A, V, W, X, Y, Z. Then we have the verticle line group, as E, F, H, I, L, T, i, l, m, n, r, u, and the vertical line group combined with a half loop, as B, D, P, R, b, d, p, q. Another combination is the vertical and oblique line group, as K, k, M, N.
It is apparent that the design of any one of these groups would suggest to a skilled workman the design of all the others of the same group, and such a workman, having before him the word "Asbestone," could, without any inventive ingenuity whatever, by exercise of a high degree of skill only, construct the entire font of patent, and it is also apparent that such a font of type, made with the word "Asbestone" used as a model, would differ in no material respect from the font of type upon which Cooper based his application for a patent.
In view of our conclusion as to the design in the word "Asbestone," we do not consider it necessary to discuss the numerous other very similar designs used in other words that were published before Cooper's application.
It has long been a settled rule of patent law that "that which infringes, if later, would anticipate, if earlier." Knapp v. Morss, 150 U. S. 221-228, 14 S. Ct. 81, 84, 37 L. Ed. 1059; Miller v. Eagle Mfg. Co., 151 U. S. 186, 14 S. Ct. 310, 38 L. Ed. 121.
It certainly cannot be contended that if the design of the font of type upon which Cooper based his application were patentable and had been patented, and thereafter the word "Asbestone" was being used, it would not be an infringement on the patent. The word "Asbestone" had a publication date of June 14, 1919, and the public had acquired the right to the use of this design before Cooper's application was made.
As was well stated in the able brief filed on behalf of the Commissioner: ...
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