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PESCI v. F.A. VIESER & SON

January 31, 1941

PESCI et al.
v.
F.A. VIESER & SON, Inc.



The opinion of the court was delivered by: AVIS

A patent suit involving the following facts:

(1) The patent was issued to plaintiff Thomas Pesci on May 11, 1937 in pursuance of an application filed by patentee on May 28, 1936, patent No. 2,079,870. The patent relates to improvements in blocks used for printing linoleum and other floor coverings.

 (2) The method of preparation is to construct a nonwarpable block of four laminated wooden materials of a total thickness of about 2 inches, the block being approximately 19 inches in width and 108 inches in length. On the top of this block, running across its width, certain cuts are made, called kerfs; these cuts are usually about 1/16th of an inch in width and about 3/16th of an inch in depth, leaving the upright parts about 1/16th of an inch in width. Across these kerfs, and at right angles thereto, some one, about the year 1909, conceived the idea of placing what are called scratch lines of 10, 12, or 14 to the inch as desired, and, because of the fact that if they were made deeply in the kerfs it would interfere with the printing, they were lightly cut or pressed.

 (3) The kerfs and scratch lines were used to located the place or places on the block where the designs and places for designs were to be cut. To locate these places, the method was to ount so many kerfs in one direction and so many scratch lines in another direction, by which the location of the design was fixed, to be used the full length and wildth of the block.

 (4) The disclosures in the patent issued to Pesci provide for the placing of a contrasting color or mark on the scratch lines, making it easier for the operations in tracing the design on the block and in cutting it. The evidence indicates that the contrasting mark on the scratch lines makes it more convenient for the persons engaged in tracing and cutting the design, and increases the efficiency of the workers.

 (5) The testimony showed that before ink lines or other contrasting color was put on the scratch lines, it had been the custom of operators on blocks to count the lines and kerfs and impose pencil lines upon the blocks at proper places and running in some instances the full width and length of the block, and that this method had been used for many years.

 (6) The claims of plaintiffs at issue in this action relate only to the adding of inked lines on the scratch lines for making them more visible and to increase legibility of said lines.

 Conclusions of law.

 The legal questions involved are stated in the plaintiff's brief to be "that the patent in suit is void by reason of anticipation in view of the prior art and want of invention." The defendant's brief states these questions to be, because of (1) failure to define invention over the prior arts, (2) the alleged invention is not proper statutory subject matter for patent protection, and (3) the alleged invention was in prior public use for more than two years prior to the time the patentee filed his patent application.

 There is some difference in words as to the issues, but not much in fact.

 It is not required to examine in detail the patents heretofore issued and claimed to be in anticipation, as none of them can be considered of a character similar to the patent in question.

 In view of all of the circumstances I do not think this constitutes invention. For many years opertors had used pencil marks to fix the location for designs. The idea of patentee was following out this original practice, and it probably came to ...


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