of contrasting markings on scratch lines. The process of imposing the contrasting inked lines was not disclosed in the evidence and is not at issue. Nothing is involved in the patent but the fact that so called ink lines are imposed on scratch lines.
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 his mind by reason of seeing how operators used the pencil line.
"To be patentable, a thing must not only be new and useful, but must amount to an invention or discovery." Syllabus. Thompson v. Boisselier, 114 U.S. 1, 2, 5 S. Ct. 1042, 29 L. Ed. 76.
It is true that patentee has shown mechanical ingenuity in providing for the imposition of ink lines, and the result has been of some service to the operators and the art in general, but, in my opinion, it is not inventive genius.
It could be said that it has been commercially successful, but this fact does not justify the sustaining of a patent. In the case of Atlantic Refining Co. v. James B. Berry Sons Co., 3 Cir., 106 F.2d 644, 650, the court said: "The record shows the commercial success of the Lewis method. But it is the law that the test of commercial success may be applied only when the question of novelty is fairly open to doubt."
Mechanical ingenuity is not enough to sustain a patent. In the same case ( Atlantic Refining Co. v. James B. Berry Sons Co., supra), the court on second rehearing said: "That Lewis has shown mechanical ingenuity in adding the auxiliary steam strippers is not open to doubt, but has he displayed inventive genius? This is the crux of the case at bar in view of the fact that no exact anticipation is displayed in the prior art. His disclosures seem the result of a regular development of the art of fractionating hydrocarbons, he adding an ingenious and commercially valuable step. But, in the light of the development of the prior art, we cannot conclude that the end which Lewis achieved was the result of that incandescent and illuminating instant in which the mind grasps a hitherto undisclosed principle and with it achieves a new result whether by new tools or old. Lewis must be held not to have displayed inventive genius." 106 F.2d 655, certiorari denied, 308 U.S. 623, 60 S. Ct. 379, 84 L. Ed. 520.
A case very much in line with the instant case, and which arose on appeal to the Court of Appeals of District of Columbia from the Commissioner of Patents, is the case of In re Anderson, 56 App.D.C. 139, 10 F.2d 1004, in which it was held that the making of index or identifying white letters on matrices used in typesetting machines, to contrast with surrounding dark metal, thereby facilitating easier reading, was not a patentable invention.
Counsel for plaintiffs cite the case of Matrix Contrast Corporation v. Kellar, D.C., 34 F.2d 510, as sustaining their contention -- and it does --, but I do not think that the principle therein stated on page 513 of 34 F.2d can be considered at this time as a proper basis for sustaining the validity of a patent, and certainly it is in conflict with the reported cases in this Circuit.
An order will be signed dismissing the complaint with costs.
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