useful. It must be ornate; it must appeal to the eye of the beholder. The inventor of a design entitled to the protection of a patent must produce a result akin to that produced by the artist or sculptor. His design must be new, and it must be beautiful and attractive. What is it, then, that Baker has invented? He says it is an ornamental design for a set of character blocks. It certainly is not for wooden block letters, for these were unquestionably old. It cannot be for placing the letters in their natural sequence from A to Z, for this is the natural and usual arrangement. So, too, the obvious arrangement of figures is from 1 to 9 and zero. The complainant emphasizes the statement that these blocks are toys designed for children, and bases thereon an argument that novelty and invention may be predicated of that fact. The patent says nothing as to the use to which the blocks are to be applied; but if it had done so, it can hardly be maintained that a device otherwise unpatentable becomes an invention because it is to be used by children. If this were so, infringement would depend upon the age of the user. In this case Mr. Baker created no new device or form. He, simply at the best applied an old or existing device or form to a new use."

A design patent must involve invention but its validity will not be negatived by combined features that are separately old or by features that are separately found in other articles of the same class. Bush, etc., Piano Co. r. Becker, (S. D. N. Y. 1913) 209 Fed. 233.

It is essential to the validity of a design patent that originality and the exercise of the inventive faculty are displayed. Collender t. Griffith, (1873) 11 Blatchf. 212. 6 Fed. Cas. No. 3,000; Pelouze Scale, etc., Co. r. American Cutlery Co., (C. C. A. 7th Cir. 1900) 102 Fed. 916, 43 C. C. A. 52; Cary Mfg. Co. r. Neal, (C. C. A. 2d Cir. 1899) 98 Fed. 617. 39 C. C. A. 189; Krick r. Jansen, (S. D. N. Y. 1894) 59 Fed. 364; Eagle Pencil Co. v. American Lead Pencil Co., (S. D. N. Y. 1892) 53 Fed. 388; Osborn . Judd. (S. D. N. Y. 1886) 29 Fed. 96; Matter of Niedringhaus, (1875) 2 MacArthur (D. C.) 149.

In order to decide that a design is unpatentable, it is not necessary to find that it infringes an earlier one; for, to entitle an applicant to the benefit of the Design Act, there must be an exercise of the inventive faculty. In re Schraubstadter, (1905) 26 App. Cas. (D. C.) 331.

Originality and the exercise of the inventive faculty are as essential to give validity to a patent for a design as for a mechanical invention. General Gaslight Co. v. Matchless Mfg. Co., (S. D. N. Y. 1904) 129 Fed. 137.

A valid design patent demands, as has uniformly been held, an exercise of the in

ventive faculty the same as a mechanical patent. The design, however, thus invented must be not only new and original, but ornamental. It must exhibit something which appeals to the æsthetic faculty of the observer. Rose Mfg. Co. v. E. A. Whitehouse Mfg. Co., (D. C. N. J. 1913) 201 Fed. o26.

Sufficiency of invention. The fact that a design patent produces a new and pleasing design, by which the value of the object to which it is to be applied is increased, is sufficient to satisfy the requirement of invention and novelty. Smith v. Stewart, (E. D. Pa. 1893) 55 Fed. 481; Untermeyer . Freund, (S. D. N. Y. 1889) 37 Fed. 342.

In the following cases the designs considered were held to involve invention: Caldwell v. Powell, (C. C. A. 3d Cir. 1896) 73 Fed. 488, 39 U. S. App. 214, 19 C. C. A. 592; Stewart v. Smith, (C. C. A. 3d Cir. 1893) 58 Fed. 580, 17 U. S. App. 217, 7 C. C. A. 380; Anderson v. Monroe, (W. D. Pa. 1893) 55 Fed. 396; Anderson r. Saint, (W. D. Pa. 1891) 46 Fed. 760; Eclipse Mfg. Co. v. Adkins, (N. D. Ill. 1890) 44 Fed. 280.

An appearance or color, beautiful in itself, resulting from the common efforts of those ordinarily skilled in a particular art, as in the case of workers in enamel, is not a subject for a design patent. Matter of Niedringhaus, (1875) 2 MacArthur (D. C.) 149.

Color constitutes no element of a design patent. Star Bucket Pump Co. t. Butler Mfg. Co., (W. D. Mo. 1912) 198 Fed. 857.

Mechanical skill It is not sufficient to support a design patent that mere me- . chanical skill is shown. Northrup v. Adams, (1877) 2 B. & A. Pat. Cas. 567, 18 Fed. Cas. No. 10,328; Buffalo Specialty Co. v. Art Brass Co., (S. D. N. Y. 1912) 202 Fed. 760.

Novelty. The design must be new and original, and not a copy or any imitation. Foster r. Crossin, (C. C. R. I. 1890) 44 Fed. 62.

Originality and the exercise of the inventive faculty are as essential to give validity to a patent for a design as for a mechanical invention. General Gaslight Co. r. Matchless Mfg. Co., (S. D. N. Y. 1904) 131 Fed. 137; Weisgerber v. Clowney, (C. C. N. J. 1904) 131 Fed. 477.

This requirement, however, does not preclude the selection and adaptation of an existing form, provided it is more than the exercise of the imitative faculty and the result is in effect a new creation producing a different effect on the eye of the ordinary observer.. Phoenix Knitting Works v. Grushlaw, (E. D. Pa. 1910) 181 Fed. 166.

There is no novelty in a transfer of a design to a new article of substance. Cahoone Barnet Mfg. Co. v. Rubber, etc., Harness Co., (C. C. N. J. 1891) 45 Fed.

thill-iron, as a packing between that and the draft-eye, where it is concealed from sight, is useful, but not ornamental, and therefore cannot be made the subject of a design patent. Bradley v. Eccles, (C. C. A. 2d Cir. 1903) 126 Fed. 945, 61 C. C. A. 669, affirming (N. D. N. Y. 1903) 122 Fed. 867, and reversing (N. D. N. Y. 1903) 122 Fed. 871.

Sufficient ornamentation.- This section, even as amended by the Act of May 9, 1902, means that the design or form of construction for the article is to be such that it is to be ornamental when offered for sale in the market, if designed for sale in the market, or ornamental in the place where used, and that the statute is satisfied if it be ornamental in either place. Bradley v. Eccles, (N. D. N. Y. 1903) 122 Fed. 871.

Ancient ornamentation.-An ornamental device anciently and commonly used may not be patented, as the prior state of the art must be considered. Soehner v. Favorite Stove, etc.. Co., (C. C. A. 6th Cir. 1897) 84 Fed. 182, 54 U. S. App. 389, 28 C. C. A. 317.

In a font of type, the addition of an old waved outline to common forms of letters does not amount to invention. In re Schraubstadter, (1905) 26 App. Cas. (D. C.) 331.

New combinations of old forms in designs. Whenever ingenuity is displayed in producing a new design which imparts to the eye a pleasing impression, even though it be the result of uniting old forms and parts, such production is patentable. General Gaslight Co. r. Matchless Mfg. Co., (S. D. N. Y. 1904) 129 Fed. 137.

Where it appears that, by uniting old elements perceivable in other lamp designs, a new lamp of different contour and construction is produced and where the collocated elements also impart an ornamental and graceful appearance, not possessed by prior lamp designs, the conception is beyond what an ordinarily skilled workman is able to achieve. General Gaslight Co. v. Matchless Mfg. Co., (S. D. N. Y. 1904) 129 Fed. 137.

Mere assembling of old parts. The mere assembling of old parts to make a structure of a new design, although new lines and curves and a harmonious and novel whole are produced,.does not involve invention so as to render the design patentable. Crier v. Innes, (C. C. Vt. 1908) 160 Fed. 103, affirmed (C. C. A. 2d Cir. 1909) 170 Fed. 324, 95 C. C. A. 508.

Old elements in new arrangement.That an element of a patented design, considered separately, is old, and that sometimes two or more of them have appeared combined in prior art, does not invalidate the patent, unless it appears that they were so assembled as to form the designs of the patent. Graff v. Webster,

(C. C. A. 2d Cir. 1912) 195 Fed. 522, 115 C. C. A. 432.

When a design invention consists in nothing more than the bringing together of elements old in the art with slight modification of shape in adapting them or adjusting them to each other, the patentable novelty is only in the slight departures of form, and any subsequent use of the same basic elements with a variation of form of adaptation departing, to the discernment of an ordinary observer, from the slight change employed in the patent, is not an infringement. Phoenix Knitting Works v. Rich, (N. D. Ohio 1911) 194 Fed. 708.

Transfer of old design. A design patent will not be issued for the mere transfer of an old design from one object to another. Untermeyer v. Freund, (C. C. A. 2d Cir. 1893) 58 Fed. 205, 20 U. S. App. 32, 7 C. C. A. 183; Eclipse Mfg. Co. r. Holland, (N. D. N. Y. 1894) 62 Fed. 465:

A design patent will not be issued for an old design applied to a new purpose. New York Belting, etc., Co. v. New Jersey Car Spring, etc., Co., (1890) 137 U. S. 445, 11 S. Ct. 193, 34 U. S. (L. ed.) 741; Cahoone Barnet Mfg. Co. v. Rubber, etc., Harness Co., (C. C. N. J. 1891) 45 Fed. 582; Foster v. Crossin, (C. C. R. I. 1890) 44 Fed. 62; Miller r. Young, (1864) 33 Ill. 354.

We

New shape or configuration to article of manufacture. In Theodore W. Foster, etc., Co. r. Tilden-Thurber Co., (C. C. A. 1st Cir. 1912) 200 Fed. 54, 118 C. C. A. 282, the court said: "According to the appellant's contention, the intent of Congress manifested by the amendment is that design patents for the mere shape or configuration of an article of manufacture should no longer be granted. are not prepared to accept this view. Though the amendment has dropped the word useful,' and the express provisions that a new shape or configuration given to an article of manufacture shall be patentable as a design, we are unable to believe it intended by these changes that no design for any article of manufacture shall be considered new, original, and ornamental,' within the meaning of the section as it now stands, if the ornamental character consists merely in a new and original shape or configuration given to the article. It is, of course, still true, as was held before the amendment, that 'design patents refer to appearance, not utility.' It is also true now, as before the amendment, that among articles of manufacture there are some incapable of being the subjects of design patents, for want of reason to suppose that their appearance can ever really matter to anybody. . . . But if a design for an article of manufacture not belonging to this class has the requisite novelty, originality,

and ornamental character, we think that section 4929, as amended, makes it none the less patentable in virtue of those characteristics, though it may also give the manufactured article a shape or configuration which is new, or which has greater utility than any previously used. Such a patent, indeed, would cover the new shape or configuration only in its ornamental and not in its merely useful aspect, nor would it be infringed by an article securing the same merely useful result through shape or configuration." Design for sarcophagus.-A sarcophagus monument is a manufacture" within the meaning of this section and a proper subject for a design patent. Crier v. Innes, (C. C. A. 2d Cir. 1909) 170 Fed. 324, 95 C. C. A. 508, affirming (C. C. Vt. 1908) 160 Fed. 103.

Design for article in industrial use.-A design is not rendered unpatentable, or placed without the statute, for the reason that the article of manufacture to which the design relates and which is manufactured according to the design, is an article of use in some branch of industry. Bradley r. Ecces, (N. D. N. Y. 1903) 122 Fed. 871.

Design for head of nail. A design is not patentable which consists of an iron nail having a mushroom-shaped head and a circular protuberance on the convex side of the head. In re Sherman, (1910) 35 App. Cas. (D. C.) 100.

Clothes brush. It has been held that a clothes brush is an article subject to a design patent within this section. Theodore W. Foster, etc., Co. r. Tilden-Thurber Co., (C. C. A. 1st Cir. 1912) 200 Fed. 54, 118 C. C. A. 282.

Reproduction of photograph.-A valid design patent does not necessarily result from photographing a manufactured article and filing a reproduction of such photograph properly certified in the patent office Rose Mfg. Co. v. E. A. Whitehouse Mfg. Co., (D. C. N. J. 1913) 201 Fed. 926.

Design for carpet.-The design of a pattern to be worked into a carpet is within the statute. Dobson v. Dornan, (1885) 118 U. S. 10, 6 S. Ct. 946, 30 U. S. (L. ed.) 63.

Similar designs.- Designs that are so nearly alike that one might be mistaken for the other by an ordinary observer will not be patented by reason of differences in detail and in matters not essential. Sagendorph v. Hughes, (E. D. Pa. 1899) 95 Fed. 478.

If the general result is different from anything before known or used the design may be patented notwithstanding its similarity in parts to parts of other patented designs. Matthews, etc., Mfg. Co. v. American Lamp, etc., Co., (1900) 103 Fed. 634; Untermeyer v. Freund, (C. C. A. 2d Cir. 1893) 58 Fed. 205, 20 U. S. App. 32, 7 C. C. A. 183; Ripley r. Elson

Glass Co., (S. D. Ohio 1892) 49 Fed. 927; Anderson v. Saint, (W. D. Pa. 1891) 46 Fed. 760; Whitman Saddle Co. r. Smith, (C. C. Conn. 1889) 38 Fed. 414; Perry v. Starrett, (1878) 3 B. & A. Pat. Cas. 485, 19 Fed. Cas. No. 11,012.

Test of identity.-The true test of identity of design is sameness of appearance, in other words sameness of effect upon the eye; it is not necessary that the appearance should be the same to the eye of an expert. The test is the eye of an ordinary observer, the eyes of men generally, of observers of ordinary acuteness, bringing to the examination of the article upon which the design has been placed that degree of observation which men of ordinary intelligence give. Ripley v. Elson Glass Co., (S. D. Ohio 1892) 49 Fed. 927; Jennings v. Kibbe, (S. D. N. Y. 1882) 10 Fed. 669; Gorham Mfg. Co. v. White, (1872) 14 Wall. 511, 20 U. S. (L. ed.) 731; Smith v. Whitman Saddle Co., (1893) 148 U. S. 674, 13 S. Ct. 768, 37 U. S. (L. ed.) 606; Redway v. Ohio Stove Co., (S. D. Ohio 1889) 38 Fed. 582; Phoenix Knitting Works v. Rich, (N. D. Ohio 1911) 194 Fed. 708.

In Grelle v. Eugene, (C. C. A. 9th Cir. 1915) 221 Fed. 68, 137 C. C. A. 18, the rule was laid down that the true test of identity of design was the sameness of appearance, that mere difference of outline in the drawing or sketch, a greater or smaller number of lines, or slight variations in configuration, is sufficient to change the effect upon the eye, will not destroy the substantial identity and that it is not essential to identity of design that the appearance should be the same to the eye of an expert. If, in the eye of an ordinary observer, 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, and sufficient to induce him to purchase one supposing it to be the other, the one first patented is infringed by the other.

The question of infringement is not to be determined by a comparison to discover whether or not there are certain differences. The correct test is whether the ordinary observer, giving such attention as a purchaser usually gives, would be misled. Ashley v. Weeks-Numan Co., (C. C. A. 2d Cir. 1915) 220 Fed. 899, 136 C. C. A. 465.

Designs that are so nearly alike that they impart to the mind the same general idea of ornamentation and appearance so as to deceive an observer, will not be patented. Bush, etc., Piano Co. v. Becker, (S. D. N. Y. 1913) 209 Fed. 233.

To determine whether a design infringes a design patent, we cannot look solely to the elements nor the details in carrying out the parts of the design, but the test, somewhat like that applied in the case of unfair competition, is whether

or not the person desiring to obtain an article bearing the original design would be deceived or induced to purchase the imitation because of its similarity, and whether there is likelihood of users or casual observers not noticing the distinction. Or, again, whether purchasers, not having in mind the details of the design, but having their attention called to either the original or the imitation, would fail to carry away those details in their memory, and having been pleased with the general appearance would, upon seeing the similar pattern, conclude that the plated ware or the imitation design, of a generally similar appearance and at a cheaper price, was a copy of the solid pattern.' Graff . Webster, (E. D. N. Y. 1911) 189 Fed. 902.

Patents for article and design.-Separate patents may be issued for an article and for the design of the article. Flomerfelt v. Newwitter, (S. D. N. Y. 1898) 88 Fed. 696.

Not for process. A patent under this section is for the design, which is the product of the invention, and not for the process or the means by which it is produced, and has less regard to the utility of the product than to the novelty and originality of its appearance. Foster . Crossin, (C. C. R. I. 1890) 44 Fed. 62.

Device for applying design.-A device or process of applying a design to designated articles may not be claimed as a design. Clark v. Bousfield, (1869) 10 Wall. 133, 19 U. S. (L. ed.) 862.

Design patent for machine. A design patent may not be issued for a machine or a manufacture. Simpson r. Davis, (1882) 20 Blatchf. (U. S.) 413; Rowe v. Blodgett, etc., Co., (C. C. Conn. 1900)

103 Fed. 873; Cone v. Morgan Envelope Co., (1879) 4 B. & A. Pat. Cas. 107, 6 Fed. Cas. No. 3,096.

A patent for a manufactured article cannot be sustained as a design patent. Cone. Morgan Envelope Co., (1879) 4 B. & A. Pat. Cas. 107, 6 Fed. Cas. No. 3,096.

Mere function or mechanical result is not patentable as a design. Thus a claim for a design patent in light reflectors, which in no sense referred to the design of the reflector but rather to the results attained and the manner of light distribution, was held to relate to the mechanical function of the reflector and not to its ornamentation or design, and consequenty not patentable. In re Mygatt, (1912) 39 App. Cas. (D. C.) 432.

Anticipation by mechanical patent.-A mechanical patent is wholly distinct from a design patent and will not anticipate it. Flomerfelt r. Newwitter, (S. D. N. Y. 1898) 88 Fed. 696.

Anticipation of mechanical invention.— A design patent will render void a mechanical patent subsequently issued to the same inventor within two years, as a matter of double patenting, where the two are indistinguishable in their characteristics and are manifestly the outcome of the same inventive idea. Williams Calk Co. . Neverslip Mfg. Co., (M. D. Pa. 1905) 136 Fed. 210.

Successive patents to same person.-A design patent will operate as an anticipation of a subsequent patent to the same inventor, just as though issued to another person, where everything to be found in the one is portrayed in the other. liams Calk Co. r. Neverslip Mfg. Co., (M. D. Pa. 1905) 136 Fed. 210.

Wil

186 Fed. 339, 108 C. C. A. 539, reversing (S. D. N. Y. 1910) 181 Fed. 840.

Description by photograph.—The design is sufficiently represented by a photograph. Dobson v. Dornan, (1886) 118 U. S. 10, 6 S. Ct. 946, 30 U. S. (L. ed.) 63.

A drawing or a photograph is sufficient to claim a design and it is not necessary that a verbal description be given. Dobson r. Dornan, (1886) 118 U. S. 10, 6 S. Ct. 946, 30 U. S. (L. ed.) 63; Bush, etc., Piano Co. t. Becker, (S. D. N. Y. 1913) 209 Fed. 233.

Description by drawings. In an application for a design patent for a font of type, it is sufficient to furnish the conventional drawing accepted for years by the patent office, and it is not necessary, under the patent office rules relating to