minus v. FITZPATRICK. 39
, Kascs et al. v. Frrzrsrnrcx et al.
(Owcuit Oourl, SYD. New York. Febuary 24, 1888.)
Pnnm-s ron INV'ENTIONS—DESIGN PATENTS-CORSETS—PATFNTABILITY. '
The design patent No. 13,620, dated February 13, 1883, and granted to Frank
Walton, being a design for corsets, readily distinguishable by ordinary per-
sons from those of any prior design, is valid. V
In Equity. On bill for injunction. ' `
Bill for injunction by Leopold Kraus et al. against James G. Fitzpatrick
et al., for infringement of design patent No. 13, 620, dated February 13,
1883.
Robert H. Duncan, for orators. t Vi
Lawrence E. Sewum, for defendants.
WHEELER, J. This suit is brought upon design patent No. 13,620,
dated February 13, 1883, and granted to Frank Welton, assignor to the
orators, to run seven years, for a corset. The principal features of the
design, as specified in theclaim, are a ribbed band at the lower edge,‘·ex-
tending from the extreme front up over the hip, and down to the .rear
portion, and a series of ribs each side of the central hip line, beginning
at the top and extending downward, and diverging onto the ribbed band.
The shape given to the corset by extending the lower edge up over, ine
stead of around, the hip, appears to addto the utility of the corset as an
article of manufacture, as well as to its appearance. The patent is not,
however, for an article of manufacture as such, which would have to be
taken out under other provisions of the law than those relating to design
patents; but is merely for the new appearance given to the article by con-
structing it according to the design. But thefactthat a corset made ac-
cording to the design would have that utility would not appear to make
the design any the less patentable, if in itself, as a design, it was sutli-
ciently new. The test of infringement of a design patent appears to be
the existenceeof such similarities as will lead ordinary persons to think
the articles in question are the same. Gorham O0. v. White, 14 Wall.,
511; Jennings v. Kibbe, 20 Blatchf. 353, 10 Fed. Rep. 669. The test
of novelty would, therefore, appear to be the existence of such differ-
ences between articles embodying the patented design and those existing
before as would be recognized by the same class of persons. Lehnbeuter
v. Holthazw, 105 U. S. 94. r The nearest approach· to the design of this
patent shown by the evidence. and the one most relied upon by the de·
fendants, is that shown in the patent to Paul T. Hertzog, No. 12,7 'Z3,
dated February2i, 1882. That has the ribbed band at the lower edge,
but not extending up over the hip so fargand it does not have the se-
ries of ribs, distinguishable from the rest, on each side of the hip line.
Most of the special features of this design are to be found, separately, in
prior things, but they are nowhere combined so as. to make such an ef—
fect as a whole; and that is what is to be looked at. Perry v. Starrett