the advantages of the patent in suit. Shepherd's invention was an improvement which successfully carried a principle into effect. By it he chiefly desired to strengthen the bristle-bearing part of the brush, and also to facilitate the flow of the water to the bristles through suitable openings in the back, in order to maintain them in a clean and dry condition after use. These results he seems to have accomplished, though others skilled in the art have failed, and therefore his patent, within a limited range, is thought to be entitled to protection.

Stress is laid upon the action of the Patent Office in twice rejecting the application. That the claim finally granted was narrow must be admitted. Such a restricted construction, however, as is contended for by defendants, applied to an extremely narrow art, in view of the beneficial results achieved, is not, as already indicated, thought to be warranted, although the question is not free from doubt. The principle of the patent should not be disregarded, where it fairly appears that a meritorious invention is described, and where the infringer has substantially adopted the method of carrying the principle into effect. The general rule is stated in Gaisman et al. v. Gallert (C. C.) 105 Fed. 955:

"When forced to choose between a construction which destroys and one that saves the patent, the court should not hesitate to adopt the latter." Winans v. Denmead, 15 How. 330, 14 L. Ed. 717.

An examination of the record in connection with the file wrapper fairly indicates that what the patentee claimed was means whereby the most material is provided at the bristle-receiving side of the brush. The words of the claim, "to the face thereof," according to the Century Dictionary, may also be understood as meaning "in the direction of," etc. The patentee has pointed out with sufficient clearness such features as he claims is his invention. The rule is that, if the skilled in the art are thereby enabled to discover the new features, the law affords protection to the inventor. In my opinion it makes no difference that the slant of the walls is not carried down to the face, even though the altered terms of the claim employs language to that effect.

My attention is not called to any brush having a reticulated back wherein the openings taper to the face, or toward the face, so as to provide the bristle side of the brush with the most material. This conception undoubtedly belongs to the patentee. He was the first to disclose beveled longitudinal openings in brush backs in connection with providing the most material at the bristle side thereof. The essential features of the patent are retained in complainant's modified tooth brushes. It is material that there is also as large a quantity of material in other portions of the base or bars as at the face of the brush. It is a familiar rule that patentable machinery, for example, in many instances requires changing of parts and forms to adapt the same to the principle of the invention. Shepherd patent is not a primary patent, and is not entitled to a great liberality of construction; but, in view of the failures of the prior art and of the novelty and utility of the invention, a fair range of equivalents is thought to be permissible. Davis v. Fredericks

The

(C. C.) 19 Fed. 99, 21 Blatchf. 556; Emerson Electric Mfg. Co. v. Van Nort Bros. Electric Co. (C. C.) 116 Fed. 974; Acme Flexible Clasp Co. v. Cary Mfg. Co., 101 Fed. 269, 41 C. C. A. 338; George Frost Co. et al. v. Cohn et al. (C. C.) 112 Fed. 1009. The modified Shepherd brushes are within the scope of the claim, are of patentable novelty, and a new result has been accomplished by the patentee, which is not destroyed by the change in form. The variation in no way effects any change in the purpose, functions, or operations of the brushes.

The record shows that the principle of the Shepherd patent and the manner of carrying it into effect is revealed in defendant's tooth brushes, exhibited in evidence and filed prior to the hearing by order of the court. Defendants seek to escape the charge of infringement by insisting, as heretofore stated, upon an exact reading of the claim, and by denial of infringement in fact because of dissimilarity in defendants' structures. The slight beveling of the defendants' slots, three in number, is not carried down toward the face of the brush as sharply as that disclosed in the form adopted by the complainant. Nevertheless, defendants' exhibits have slots which are widest at the back and narrowest at the face of the brush, and the most material is provided where the bristles are inserted.

But it is insisted that Shepherd on February 1, 1902, filed an application for a brush with apertures between the rows of bristle tufts for convenience in cleaning, and that this feature was held by the Patent Office to be anticipated by the British patent to Pedder, No. 2,450 of 1867. Later the application became abandoned. In explanation of the alleged abandonment, the patentee testified that he was unable to pay for prosecuting such application. The proofs do not show that Shepherd intended to abandon the first application, and his lack of means to prosecute the same cannot be interpreted as an acquiescence in the action of the Patent Office. Robinson on Patents, § 578.

For the foregoing reasons, the defendants must be held to infringe the patent in controversy. The usual decree for an injunction and accounting, with costs, may be entered.

MYGATT v. ZALINSKI et al.

(Circuit Court, S. D. New York. May 17, 1905.)

PATENTS-DESIGNS-LAMP SHADES.

The Mygatt design patent, No. 32.685, for a design for a lamp shade or reflector, discloses novelty and invention, and is valid. Also held infringed.

Suit for the alleged infringement of a design patent for reflectors of artificial light No. 32,685, dated May 22, 1900, and granted to Otis A. Mygatt. The defendants' counsel in his points says: "The defendants deny the validity of the patent, and they deny infringement. No other question presented by the pleadings is of importance at this stage of the case."

Taylor, Anderson & Seymour (Howard Taylor and Francis H. Kinnicutt, of counsel), for complainant.

Simon L. Adler (James A. Hudson, of counsel), for defendants.

RAY, District Judge. The complainant claims "the design for a lamp shade or reflector, as herein shown and described." The specifications say, among other things:

"My design consists in a new and original shape or configuration of an article of manufacture known as a 'reflector' or 'shade' for an artificial light, and in a new and original ornament or form of ornamentation of such a manufacture. * * As shown in the drawings, the shape or configuration of my design is in general that of a frustum of a cone, A, with a central opening, above which is a circular collar or tube, B, with an opening therein. The lower or inside face of the reflector or shade is smooth. The upper surface has prismatic ribs, as indicated at C, such ribs constituting surface ornamentation of the shade, and extending from near the outer edge toward the center. The material of which this shade is composed is translucent, such as glass, and the same may be tinted. The tint in the glass adds to the iridescent or spectral effect of a light shining through the translucent material on the prismatic ribs. The shade or reflector is intended to be suspended slightly above an artificial light or lamp, and the light rays rising from the light pass through the transparent material, and are reflected or refracted by the prismatic ribs on the upper surface thereof, producing an ornamental and useful distribution of the light rays which pass through and also of the rays which are reflected from the shade or reflector."

This lamp shade or reflector is both useful and highly ornamental. It is seen to great advantage, even in daylight, when placed in the position designated near an artificial light. That it is useful as well as ornamental does not affect its patentability as a design patent. In open court the complainant's reflectors made according to the patent were produced and placed in the position designated. It was clearly apparent to the court that the reflectors "fill the bill" -are all that is claimed. The evidence fully sustains the claims of the patent.

The defendants contend that there is no infringement for the reason that the complainant is confined to a shade of the exact angle shown in the drawings of the patent. This is not the law. Ripley v. Elson Glass Co. (Č. C.) 49 Fed. 927. The defendants are making and selling substantially what the complainant is making and selling or is authorized by his patent to make and sell. True, in some, if not all, the angle is changed; the edge is curved or beaded, and in some there are other slight changes, but these changes are evidently made to be used in justifying the infringement if possible. The defendants' shades or reflectors are bald appropriations of the complainant's patent. Slight changes are made which add nothing to the ornamentation, but rather detract therefrom. These, however, enable the defendants to say our shade or reflector is different from yours; therefore we do not infringe. The defendants say, recognizing the merit of complainant's patent:

"Our contention here is that while it is doubtless true that Mygatt has produced an article of manufacture of transparent glass that is more efficient as a reflector than any transparent glass lamp shade previously in use, it is equally true that the increased efficiency of his production is not due to anything either in shade body or surface ornamentation, or to a combination

of the two, that could be properly made the subject-matter of a design patent at the time when his application was filed."

In Weisgerber v. Clowney (C. C.) 131 Fed. 480, it was said:

"There may be no objection to the article to which it relates being useful as well as ornamental, but the attempt to patent a mechanical function, under cover of a design, is a perversion of the privilege given by the statute."

This is quite true but this court fails to discover any attempt here to patent a mechanical function. True, it is when the artificial light is turned on that the reflector shows to its great advantage; but the patent is not for a machine to make light look pretty, but for a design in the shade or reflector that will make it exceedingly handsome and ornamental when in use. Clearly the patent is not void for want of invention. It is not claimed that "the patent is generic as to form of configuration of the shade body-embracing all frustums of cones." All the world, so far as this patent is concerned, is at liberty to make lamp shades or reflectors in the shape. of the frustum of a cone. But when to a reflector of that general shape or form is added the other elements of the complainant's patent, using the same material, we have infringement. Here the defendants fall into error. They say we may use the frustum of a cone shape; we may use a circular collar with an opening; we may use the smooth inside face; we may use the prismatic ribs; we may have them long or short, as we elect; therefore we may use them in the combination indicated by the complainant's patent. This cannot be so if any design patent is to be held valid. It is of course true that the complainant must stand here upon the novelty, utility, etc., of his patent as an ornament, etc.; that is, upon the design, not the utility, of the shade as such or as a reflector of light for illuminating purposes.

The court is of the opinion that the patent is valid and that defendants infringe. There will be a decree for an injunction and an accounting.

KLINE CHAIR CO. v. THEO. A. KOCHS & SON et al.

(Circuit Court, S. D. New York. May 26, 1905.)

PATENTS-INFRINGEMENT-DESIGN FOR CHAIR.

The Kline design patent No. 26,623, for a design for a chair, held valid, but not infringed.

This is a suit in equity for the infringement of design patent No. 26,623, of February 9, 1897, "Design for a Chair." The defenses are noninfringement, anticipation, and want of invention in view of the prior art.

C. V. Edwards (Joseph C. Fraley, of counsel), for complainant. H. A. Heyn (Bond, Adams, Pickard & Jackson, of counsel), for defendants.

RAY, District Judge. In open court the defendants admitted that this chair is the subject of a design patent, although it is made

and constructed for use solely and is not intended ever for ornamentation. The invention relates, says the patent, to the frame of the chair, and the principal feature of the design is the contour of the frame, consisting in a broad upper portion forming sides or arms for the seat, and having an abrupt or substantially vertical front edge and a sloping rear edge, terminating in a narrow substantially horizontal basal portion. The opening in the side of the chair frame immediately under the arm rest is partly closed by vertical bars. The basal portion is supplemented by an upwardly extending footrest. Nothing is said that this is a barber's chair or intended as such. The brief of the complainant, however, states that the design is employed in barbers' chairs. Both the complainant and the defendants are engaged in the manufacture of this class of chairs. It may be that the complainant's chair made in accordance with the patent, and known as the Kline chair, was patentable under the design patent law. The presumption is in favor of the validity of the patent, and the court will hold the patent valid.

Coming to the question of infringement, this court is of the opinion that the defendants' chair does not infringe. In many respects all barber and dentist chairs resemble each other. Both chairs were in court. The court now has pictures of both chairs before it. The designs of the two chairs are strikingly dissimilar. No person would mistake the one for the other. The large opening in the Kline chair, before spoken of, occupied in part by vertical bars, is of dissimilar shape in the alleged infringing chair, and, instead of being partially filled by vertical bars, is filled by two bars crossing each other diagonally. The footrests are strikingly dissimilar, as are the arm rests. At least a dozen chairs in the prior art are as similar in design and general appearance to the Kline chair as is the alleged infringing chair.

In Weisgerber v. Clowney (C. C.) 131 Fed. 477, it was held that a design patent is addressed to the eye, and is to be judged by its' ability to please, and, while there is no objection to the article to which it relates being useful as well as ornamental, such a patent cannot be made to cover a mechanical function or construction. It was also held: "A design patent also, the same as any other, must be possessed of novelty."

Assuming that there is novelty shown in each chair, it is perfectly clear that the one does not infringe the other. The general appearance of the two is dissimilar when we look at the design of the two with a view to discern what is ornamental. As a barber chair or a dentist chair, they are quite similar in general form and construction. The alleged infringing chair does not copy or imitate the Kline chair. It is evident that there was no purpose to imitate or copy the Kline chair. There is no evidence of confusion or mistake among purchasers and users of chairs of this description. The most striking feature of the patented design is the three vertical bars. In the alleged infringement we have something entirely dissimilar.

This court cannot find infringement. The defendants are entitled to a decree dismissing the complaint, with costs.