Page:Federal Reporter, 1st Series, Volume 10.djvu/681

 JENNINGS V. KIBBE. 669 �nor have the defendants made or sold the shade of the drawings. To reach the shades of either the plaintiff or the defendants, required experiment, adaptation, and invention beyond anything shown in the drawings. Construing the patent as covering a shade of the form and dimensions and size and height and proportions shown in the drawings, no such shade has been made or sold by the defendants; and 80 there has been no infringement. This is the most favorable view which ean be taken of the patent. The bill is dismissed, with costs. ���Jennings and others v. Kibbe and others.* �lOircuit Court, S. D. New York. February 20, 1882.) �1. Lbtteks Patent fob Designs — Test op Idbntity. �The true test of identity between two designs is their sameness of effect upon the eye of an ordinary observer, bringing to the examination of the designs that degree of observation which men of ordinary intelligence give. �2. Same— Evidence OB' Idbntitt — Comparison by Court. �Where, in a suit upon design patents, the only proofs introduced were the patents and the alleged infringing article, AeW, that the designs being of a simple character, the absence of testimnny as to identity did not malse it improper for the court to compare them and determine the question of identity from such comparison. �Semble this practice is not to bu exiended lo all palenls for designs. �In Equity. �A. V. Briesen, for plaintiffs. �J. R. Bennett, for defendants. �Blatchpobd, g. j. This suit is brought on the letters patent for designs. One is No. 10,388, granted to Abraham G. Jennings, for 14 years, on January 1, 1878, for a "design for lace purling." The other is No. 10,448, granted to Warner P. Jennings, for seven years, on February 12, 1878, for a "design for a fringed lace fabric." The specification of No. 10,388 says : �" Figure 1 representa a photographie illustration of my new lace purling. Figure 2 is a photographie illustration of the same design made of co;irser thread. This invention relates to a new design for a lace faljric, and consists in providing the pillars thereof with more or less irregular, laterally-pro- jecting loops, thereby imparting to the entire fabric a puckered, wavy, purl-like appearance, which is indioated in the photograph. The loops on the pillars are placed close together to increase the effect." �*Reported by S. Nelson White, Eacj., of the New York bar. ��� �