be continued in use without a succession of replacements at short intervals. Unless it were replaced the invention would be of but little use to the inventor or others. The other constituent parts of the invention may not be made with reference to any use of them which will require them to be replaced. These, without having a definite duration, are contemplated by the inventor to last so long as the materials of which they are formed can hold together in use in such combination. No replacement of them at intermediate intervals is meant or is necessary. They may be repaired as the use may require. With such intention they are put into the structure. So it is understood by a purchaser, and beyond the duration of them a purchaser of the machine has not a longer use. But if another constituent part of the combination is meant to be only temporary in the use of the whole, and to be frequently replaced, because it will not last as long as the other parts of the combination, the inventor can not complain, if he sells the use of the machine, that the purchaser uses it in the way the inventor meant it to be used, and in the only way in which the machine can be used. Such a replacement of temporary parts does not alter the identity of the machine, but preserves it, though there may not be in it every part of its original material. Wilson v. Simpson, 9 How. 109; Farrington v. Commissioners, 4 Fish. 216.

If the different parts of a machine are covered by separate patents, the purchase of a machine will not confer upon the purchaser the right to replace one of the parts when it is worn out. Aiken v. Manchester Print Works, 2 Cliff. 435.

When the material of a combination ceases to exist, in whatever way that may occur, the right to renew it depends upon the right to make the invention. If the right to make does not exist, there is no right to rebuild the combination. Wilson v. Simpson, 9 How. 109.

When the wearing or injury is partial, then the repair is restoration and not reconstruction. Repairing partial injuries, whether they occur from accident or from wear and tear, is only refitting a machine for use. Wilson v. Simpson, 9 How. 109.

A party who purchased a machine during the existence of the original patent is entitled to continue the use of it during the time for which the patent is extended by a special act of Congress, unless there is something in the language of the law requiring a different construction. Bloomer v. McQuewen, 14 How. 539; Bloomer v. Millinger, 1 Wall. 340; Blanchard v. Whitney, 3 Blatch. 307.

If there is no provision in a license beyond the term of the patent, and no condition is imposed by Congress in favor of the licensee in a special act extending a patent, he has no right under the patent after the expiration of the term. Bloomer v. Stolley, 5 McLean 158.

An assignee has no interest in an extension procured by a special act, unless his rights are expressly mentioned and reserved. Gibson v. Gifford, 1 Blatch. 529.

SEC. 4929. Any person who, by his own industry, genius, efforts, and expense, has invented and produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woollen, silk, cotton or other fabrics; any new and original impression, ornament, patent, print, or picture to be printed, painted, cast, or otherwise placed on or worked into any article or manufacture; or any new, useful and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon payment of the fee prescribed, and other due proceedings had the same as in cases of inventions or discoveries, obtain a patent therefor.

Statute Revised-July 8, 1870, ch. 230, 71, 16 Stat. 209.

Prior Statutes-Aug. 29, 1842, ch. 263, 23, 5 Stat. 543.-March 2, 1861, ch. 88, § 11, 12 Stat. 248.

The patent allowed by this clause is simply for the design itself, and not for the means of producing the design. Clark v. Bousfield, 10 Wall. 133.

A patent for a new article of manufacture can not be construed to be a patent for a design. Cone v. Morgan Envelope Co., 4 Ban & Ard. 107. To entitle a party to the benefit of this provision, there must be an exercise of the inventive faculty. Mere mechanical skill is insufficient. There must be something akin to genius, an effort of the brain as well as the hand. Northrup v. Adams, 2 Ban & Ard. 567; s. c. 2 C. L. B. 84; Wooster v. Crane, 2 Fish. 583; s. c. 5 Blatch. 282.

To constitute an inventor of a design it is not necessary that the party should have the manual skill and dexterity to make the drafts. If the ideas are furnished by him for producing the result aimed at, he is entitled to avail of the mechanical skill of others to carry out his contrivance practically. Sparkman v. Higgins, 1 Blatch. 205.

It is essential to the validity of a patent for a design that it should be a new and original one, but the law does not require that it should be useful. Miller v. Young, 33 Ill. 354; Adams & Westlake Manuf. Co. v. St. Louis Wire Goods Co., 12 O. G. 940; s. c. 3 Ban & Ard. 77; Miller v. Smith, 18 O. G. 1047; s. c. 5 Fed. Rep. 359; Perry v. Starrett, 3 Ban & Ard. 485; s. c. 14 O. G. 599.

To entitle a party to the benefit of the act there must be originality and the exercise of the inventive faculty. There must be originality and

beauty. Mere mechanical skill is insufficient. There must be something akin to genius-an effort of the brain as well as the hand. Northrup v. Adams, 12 O. G. 430.

A combination of old designs to be patentable must be such as to produce a new appearance. If the effect produced is simply the aggregation of familiar designs it is not patentable. Northrup v. Adams, 12 O. G. 430. The adaptation of old devices or forms to new purposes, however convenient, useful or beautiful they may be in their new role, is not invention. Northrup v. Adams, 12 O. G. 430.

A beautiful appearance is not in itself patentable. The design must be new and original, and the work of invention and genius. Ex parte Frederick G. Neidringhaus, 8 O. G. 279; s. c. 2 McArthur 149.

A combination of old designs, to be patentable, must produce a new appearance. If the effect produced is simply an aggregation of the old designs, it is not patentable. Northrup v. Adams, 2 Ban & Ard. 567; s. c. 2 C. L. B. 84.

A mere design, which is practically a suggestion that a greater degree of inclination of the sides will make a billiard table more convenient, when other tables already existed which with a view to the same useful result in kind were constructed with a similar bevel, is not invention. Collender v. Griffith, 11 Blatch. 212; s. c. 3 O. G. 689.

A claim for a design for letters of the alphabet may embrace more than one letter. Miller v. Smith, 18 O. G. 1047.

A card for buttons divided by bands into spaces covered with foil is not patentable. Pratt v. Rosenfeld, 18 Blatch. 234; s. c. 5 Ban & Ard. 288; s. c. 3 Fed. Rep. 335.

If an article is manufactured by itself, it is a manufacture, although it is never used except in connection with other parts, and a new ornament for it is patentable. Simpson v. Davis. 12 Fed. Rep. 144.

The mere juxtaposition of old forms of ornaments is not patentable unless the parts when arranged constitute a single ornament. Simpson v. Davis, 12 Fed. Rep. 144.

If the arrangement of ornaments is new and useful, it is patentable, although the parts are old. Simpson v. Davis, 12 Fed. Rep. 144.

Although the parts are to a certain extent old, yet if they are made symmetrical of themselves and in respect to each other and connected together with appropriate devices and formed into a whole in a manner that can not be done without inventive genius, the design is patentable. Perry v. Perry, 14 O. G. 599.

The patent is prima facie evidence of both the novelty and utility of the design. Lehnbetter v. Holthaus, 105 U. S. 94; s. c. 21 O. G. 1783. If the patent for a design is not put in evidence, the court can not, without knowing what is patented, adjudge it to be void for want of novelty. Miller v. Young, 33 Ill. 354.

The acts of Congress which authorize the grant of patents for designs were plainly intended to give encouragement to the decorative arts. They contemplate not so much utility as appearance, and that not an abstract

impression or picture, but an aspect given to those objects mentioned in the acts. It is a new and original design for a manufacture, whether of metal or other material. A new and original design for a bust, statue, bas-relief, or composition in alto or basso relievo; a new or original impression or ornament to be placed on any article of manufacture; a new and original design for the printing of woollen, silk, cotton, or other fabrics; a new and useful pattern, print or picture, to be either worked into or on any article of manufacture; or a new and original shape or configuration of any article of manufacture-it is one or all of these that the law has in view. The thing invented or produced for which a patent is given, is that which gives a peculiar or distinctive appearance to the manufacture or article to which it may be applied, or to which it gives form. The law manifestly contemplates that giving certain new and original appearances to a manufactured article may enhance its salable value, may enlarge the demand for it, and may be a meritorious service to the public. It therefore proposes to secure for a limited time to the ingenious producer of those appearances, the advantages flowing from them. Manifestly, the mode in which those appearances are produced has very little, if anything, to do with giving increased salableness to the article. It is the appearance itself which attracts attention and calls out favor or dislike. It is the appearance itself, therefore, no matter by what agency caused, that constitutes mainly if not entirely the contribution to the public which the law deems worthy of recompense. The appearance may be the result of peculiarity of configuration or ornament alone or both conjointly, but in whatever way produced, it is the new thing or product which the patent law regards. To speak of the invention as a combination or process, or to treat it as such, is to overlook its peculiarities. As the acts of Congress embrace only designs applied or to be applied, they must refer to finished products of invention rather than to the process of finishing them, or to the agencies by which they are developed. A patent for a product is a distinct thing from a patent for the elements entering into it, or for the ingredients of which it is composed, or for the combination that causes it. In determining whether two designs are substantially the same, the controlling consideration is the resultant effect. Gorham Manuf. Co. v. White, 6 Fish. 94; s. c. 14 Wall. 511; 7 Blatch. 513; s. c. 20. G. 593.

To constitute an infringement, it is not essential that the appearance should be the same to the eye of an expert. Such a test would destroy all the protection which the statute intended to give. There never could be a piracy of a patented design, for human ingenuity has never yet produced a design in all its details exactly like another, so like that an expert could not distinguish them. No counterfeit bank note is so identical in appearance with the true that an experienced artist can not discern a difference. It is said an engraver distinguishes impressions made by the same plate. Experts, therefore, are not the persons to be deceived. Much less than that which would be substantial identity in their eyes would be undistinguishable in the eyes of men generally, of observers of ordi

nary acuteness, who bring to the examination of the article upon which the design has been placed that degree of observation which men of ordinary intelligence give. It is persons of the latter class who are the principal purchasers of the articles to which designs have given novel appearances, and if they are misled and induced to purchase what is not the article they supposed it to be, the patentee is injured, and that advantage of a market which the patent was granted to secure is destroyed. The purpose of the patent law must be effected if possible, but plainly it can not be if, while the general appearance of the design is preserved, minor differences of detail in the manner in which the appearance is produced, observable by experts, but not noticed by ordinary observers, are sufficient to relieve an imitating design from condemnation as an infringement. If in the eye of an ordinary observer, therefore, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other. Gorham Manuf. Co. v. White, 6 Fish. 94; s. c. 14 Wall. 511; 7 Blatch. 513; s. c. 2 O. G. 593; Miller v. Smith, 18 O. G. 1047; s. c. 5 Fed. Rep. 359; Wood v. Dolby, 20 O. G. 523; s. c. 19 Blatch. 214; s. c. 7 Fed. Rep. 476; Werner v. Reinhardt, 20 O. G. 1163; s. c. 10 Fed. Rep. 676; Lehnbetter v. Holthaus, 105 U. S. 94; s. c. 21 O. G. 1783. The true test of identity of design is sameness of appearance, and mere difference of lines in the drawing or sketch, a greater or smaller number of lines, or slight variances in configuration, if insufficient to change the effect upon the eye, will not destroy the substantial identity. An engraving which has many lines may present to the eye the same picture, and to the mind the same idea or conception as another with much fewer lines. The design, however, would be the same. So, a pattern for a carpet or a print may be made up of wreaths of flowers arranged in a particular manner. Another carpet may have similar wreaths arranged in a like manner, so that none but very acute observers could detect a difference. Yet in the wreaths upon one there may be fewer flowers, and the wreaths may be placed at wider distances from each other. Surely in such a case the designs are alike. The same conception was in the mind of the designer, and to that conception he gave expression. Gorham Manuf. Co. v. White, 6 Fish. 94; s. c. 14 Wall. 511; 7 Blatch. 513; s. c. 2 O. G. 593; Root v. Ball, 4 McLean 177; s. c. 2 Robb 513; Perry v. Perry, 14 O. G. 599.

What may be Patented.

A device which manifestly is intended for a trade-mark can not be patented as a design. William White, 3 Dec. Com. 304; William King, 2 Dec. Com. 109.

If a device relates wholly to its mechanical function, and not to ornamentation, an application for a design patent will be refused. Charles A. Seaman, 4 O. G. 691.

The ordinary use of an article is a controlling consideration in determining whether or not it presents proper subject-matter for a design patent. Bloomfield Brower, 4 O. G. 450.