MACBETH V. GILLINDER.

171

it was' a repetition of hiS declaration that this top was notenibraced in the former patent; but, this, could add nothing:to tb$ force and effect of what preceded it. The recordot'the office was a continuing declaration to the public tbatthis deilign was not embraced in the patent under consideration. If the "Macbeth patent" is not, as the plaintiff asserts, fol' the prism top, the effect of his former conduct is not weakened, but rather strengthened by taking this parent; for, in such ease it not only was at the time, but continues, to be an MBertion that the manufacture of this top is open to all may choose to engage in it. A decree will be entered in with this opinion.
MACBETH et aL v.GILLINDER et at (Olreult Court, E. D. Pennsylvania. November 17, 1891,) No.61. DESIGNED PATENTS-INFRINGEMENT. In determining whether a design patent Is intringed. the test 18 whether

a.

the alleged infringing article presents to the eye of an ordinary purcha.ser the same appearance as the .patented article.

SAME-DESIGNS FOR LAMP CHIMNEYS.

Letters patent No. 14,373, Is/lued October 30, 18&3, toQ Qrge A. Macbeth. for a deSIgn for lamp chimneys, cons1stlng of. a so-called "pearl top,"arefu. fringed by one who manufactures or sells a lamp ch1mneypresentiIl.g!the same appearance to the eye of an ordinary purchaser; and it is immaterial whether such appearance was caused intentionally, or by the worn condition of the toolll by which they aTe made, as claimed by ,defendants.

In Equity. Bill by Macbeth and others against Gillmder and others, constituting the firm of Gillinder & Sons, for infringement of letters patent No. 14,373, granted October 30, 1883, to George A. Macbeth; as assignee of Henry Dietrichs, for designs, 'for lamp chimneys. The patent was heretofore sustained, and an injunction granted. 54 Fed. Rep. 169. .The cause is now heard on motion for an attachment for violating the injunction. Referred to a master to ascertain the facts. James L Kay, Francia T. Ohambel'8, and George H..Christy, for plaintiffs. George Harding and George J. Harding, for defendants. . BUTLER, District Judge. Have the respondent8 disregarded the injunction? The decree of the court limited to chimney tops with circular or flared mouth, ''having a beading, or similar ornamentation. raised above," so as to present a,pearl-like appearance - which the complainants caJl a "pearl top." The reasons for this limitation aJ."e stated in the opinion filed. The only feature ·of the case, as then presented, which called for ex· tended remal'k, was that arising from the complainants' effort to extend the patent so as to cover the respondents' .''prism top," The validity of the. patent,. and its infringement by the manufacture or sale of the "small pearl top," before the court, had been settled in a former suit. We had no occasion, therefore, to remark upon

172

FEDERAL REPORTEr: t

vol. 54.

the distinguishing; lea.ttires of the "pearl top." They are however plainlyJstatedih'the speeificationand claims of tQ.e patent, from which the following is quoted:
"The object of my design is to form an ornamentation for the top of the 'cb1nu1ey; and it:colUlists, 'essentially, in a lamp chimney having a circular edge anl1 a beading or similar ornamentation raised above the said edge. The a, is. blown to shape and finished by sultable tools, and h!JS the mouth, b, w,hiCh is flared, and the circular edge, c, to give it a neat appearan'$; RaiSed 'above the circular edge, c, is the beading ornamentation, d This' beading 00nsIsts of a seriesol globular beads around the edge of the giving a fine finish to the top of the chimney to be substantially the same height around its entire edge. The beading is raised or extends up above the edge of the chimney, leaving the edge solid below the bead. The top of the chimney thus presents to the the regular flared circnlar top of the ordinary plain Chimney and a finish of beading or like ornamentation around this top, thWl 90mbining the effectQf the circular plain finished chimney with the fancifullY finished top. What I claim, and desire to secure by, letterspll-,tlillt is:" (1) . The design for lamp,chil:p.uey tops herein shown and descnbecr; 'consisting lD. iJ. circular top or edge and a beading or similar ornamentation raised above,lilald edge. (2) The design for lamp-chimney tops herelD. shown and described, consisting lD. a flared mouth having a circular top' or edge ,and a beading or similar ornamentation raised above said , "

. "The figures the patent illustrate meaning of this and ,show the "raised beaded edge," and pearl-like appeara:q9,e; very clearly. , The question may now be Has the been. disregarded?: Among the tops pu,rcfuured by the cOluplainants directly from Gillinder & Sons, as well as aInong those purohW!led .from others, bearing the firm's trademark, are several which seem, virtually, indistinguishable from the complainants' top." To the, eye. of an. prdinary purchaser, they would pre',the same appearance; an<ithis is the test in such cases. 'Whether the, resemblance arises from desigIl, or from the worn Gondition of, the respondents' tools,-as they allege,-can ,.no difference. as respects liability for the injurY resulting to complainants therefrom. If it arises from the latter cause it must be ail!'l'ibed to negligence. In ,view of the respondents' affidavits it would be unsafe to ascribe it to design, and hold them liable for intentional disregard of the writ. But a small percentage of thechimIieys exhibited. infringe. Many of them show prisms extending more or less above the edge, showing an uneven surface. This unevenness, alone, fllowever, important. The crimping must be such as to present the beaded, pearl-like top, before described: . ' ' , The' will be referred to Joseph C. Fraley,Esq., iU! master, to takep'l'bof aIid report the extent of infringement since decree, and the injUry sustained'therefrom; and also to ascertain and report the costs to whichcqmplainants have been, and will yet be, su],by this proceeding. In making the inquiry care must be observed to avoid the danger of extending the respondents' liability beyond the Wnit before stated. The line between wha.tis, and is 'not, an" hlfringefuent: is, neCessarily, dim, and the complainants' tights must be ,confined to what ja, clearly within the scope'of their :patent. '' '

IlACBETB: t1. BRADDOCK GLASS 00.

173

Frederick ll-,Gillinder makes affidavit that he severed Ills connec. tion with the firm in 1888, before final decree, and that he has Bot been connected with the manufacture or sale of chimneys since that date. The master will inquire and report upon this, and will ascertain whether Frederick R. Gillinder is responsible for the manufacture or sale of the infringing chimneys here involved. The objection to the motion founded on the failure to flerve an injunction subsequently to the decree is, under the circumstances, without substance.
MACBE'l'H et aI. v. BRADDOCK GLASS CO., Limited, et at (Circuit Court, W. D. Pennsylvania. Juiy 5, 1890.)
PATENTS FOB INVENTIONS CISIONS. INJUNCTION . . EFFECT OF PRIOR DE'

In Equity. Bill by :Macbeth & Co. against the Braddock GlMS Company, LiJ::D.ited. and others, for infringement of letters patent No. 14,373, granted October 30, 1883, to George A. Macbeth, as assignee of Henry Dietrich, .for designs for lamp chimneys. Heard on motion for preliminary injunction. Granted. James L Kay and George B:. Ohrlaty, for the motioD. W. L. Pierce, contra.

On a motion for a preliminary injunction against the infringement of letters patent No. 14,373, issUed October 30, 1883, to George A. Macbeth, for a design for lamp cWmneys, the court will not disregard poor decisions sustaining the patent, upon new evidence, consisting of. the affidavits· of five persons, resting entirely In personal recollection after the expiration of eight or ten years as to the date of certain alleged prlor uses, when there are other affidavits fixing a later date,and the latter are strongly corroborated by circumstances. . .

ACHESON, Circuit Judge, (orally.) The patent in suit haa already been sustained at final hearing in two hotly-contested casesFirst, by this court in Macbeth & Co. v. Evans & CO.,1 and then by the circuit court of the eastern district of Pennsylvania, in Macbeth v. Gillinder, 54 Fed. Rep. 169; in which cases it was held also that the patent was infringed by ornamentation similar to that appearing on the top edge of the lamp chimneys manufactured by the defendant cottnpany, of which Exhibits Nos. 1 and 2 are samples. Upon this state of facts, then, under the general rule of law applicable here, the complainants are entitled to a preliminary injunction . against the present defendants. . But, notwithstanding the priOl" adjudications, it is now asserted by the defendants that as early , as the year 1882, before the patent in suit was applied for, o,r the patented design was produced by Dietrich, the fine crimping of the top edge of lamp chimneys, producing the bead·like ornamentation of as an infringement, was openly and extensively practiced at the Independent C01Ilpany's glassworks, in the city of PittsburKh, and the affidavits of five persons have been odfered
· No opinion rendered.