Knapp v. Will & Baumer Company (C.C.A.) 273 F. 380, supra.
In College Inn Food Products Company v. Hurff, 60 F.2d 128, 129, plaintiff sued for infringement of his bottle design. Judge Avis of this court held: "Taking into consideration all of the evidence, I am unable to determine that the shortening of the neck, the widening of the surface band, and the adding of steps or collars to the base show invention, or should entitle plaintiff to a patent for what appears to be the almost identical cocktail shaker bottle of the prior art with the additions referred to. It does not evidence a 'new, original, and ornamental design' nor does it rise above mere mechanical skill."
Such variations in form are not to be given the dignity of a patent. "It is not enough to show that the design has not been anticipated, nor is it enough to show that the design is pleasing and ornamental, and presents a substantial difference to the eye from anything which has gone before. In order to involve an exercise of the inventive faculty, a design must be shown to be beyond the range of the ordinary routine designer." Boston Leather Specialty Company v. Vatco Mfg. Company (D.C.) 17 F.Supp. 910.
Mr. Balmer submitted his "rough ideas" to Mr. Jarvis, who prepared the original drawing. He stated that he gave the draftsman also oral instructions and showed him some other models that had been made. In this respect the case is similar to that of Fox v. Spiegel et al. (D.C.) 50 F.2d 195, 196, where the plaintiff gave oral instructions to his draftsman, and from these rough ideas a drawing was completed suitable to plaintiff. From this drawing plaintiff patented a bottle design. the court held that the bare verbal expressions of plaintiff did not warrant patentable invention; that the evidence disclosed that his only participation in the evolution of the design was such that at most he was a joint designer. Judge Hincks said in that case:
"The complete absence of expression by the plaintiff of the idea for which he claims invention, other than vague suggestions such as just recited, necessarily indicates that it was not the plaintiff's mind which supplied the necessary correlation of shape, dimension, and ornamentation, through which alone the elusive notions of style can be reduced to finite form in a design.
"Possibly he is sincere in believing himself the creator. It has been said that the true test of a great lyric is that it inspires every reader with the feeling that he could have written it. So perhaps it is with a design. It is human nature to feel at the sight of a design which satisfies it that it is just what we had in mind. Surely one who suggests to a musician that he write music having, say, quick time at the beginning, low tones at the end, and loud chords in the middle, could not claim authorship of the resulting song. Yet compliance with such a suggestion might obviously have an effect of real beauty -- or just the reverse. The point is that any aesthetic result from such vague suggestions comes more from the skill of the collaborator than from him who utters the initial suggestion. The latter, as I have suggested above, may indeed be sincere in his pride of creation, but as the old adage goes, it is a wise father that knows his own child.
"And even if the plaintiff contributed some creative element to the design, on the plaintiff's own testimony it appears that Cohen's part in the finished product was such as to make him at least a joint designer, thus invalidating the sole patent to the plaintiff. Ross & Co. v. Wigder (C.C.A.) 290 F. 788."
The design in question lacks any spark that makes it a product of an inventive mind. At best, Mr. Balmer caused a rearrangement to be made of old elements with minor variations which, though giving a pleasing effect does not rise to the stature of invention. Any workman could have done what he did.If this patent is declared valid, someone may come along with an idea for diamond shaped back and protruding plates with diamond shaped depressions, and perforations; star shapes, and other variations. These designs cannot be made the subject of monopoly by patent. Under such circumstances the court is constrained to the conclusion that the patent in suit is invalid and void for lack of patentable invention. In this view it becomes unnecessary to treat the other issues in the cause.
This memorandum is designed to meet the requirements of Equity Rule No. 70 1/2 (28 U.S.C.A. following section 723), providing for the filing of findings of fact and conclusions of law.
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