Page:Federal Reporter, 1st Series, Volume 10.djvu/682

 670 FEDERAL REPUBTEB. �The claim is this : �" The design for a lace purling, the pillars whereof are provided with irreg- ular, laterally-projecting loops, substantially as shown." �The specification of No. 10,448 says : �" The accompanying photograph illustrates a face view of my new design. This invention relates to a new looped fringe applied in series to lace f abries. A represents the lace fabric of nsual kind. B B are the disconnected fringeg applied tliereto. Each fringe, B, is fornaed with loops at both sides of a cen- tral stem or rib along its entire extent, as shown, thus producing a peculiar full and yet loose effect. The fringes are arranged in series of rows, and sus- pended from the lace fabric." �The claim is this : �"The design for a lace fabric provided with disconnected doubly-looped fringes, B, leaving loops at both sides of a central atein or rib, substantially as shown." �The answer denies infringement, and sets up various defences to both patents. In taking proofs for final hearing, the counsel for the defendants being present, the plaintiffs put in evidence the two patents and assignments to the plaintiffs, and a "nubia." The counsel for the defendants admitted, on the record of proofs, that the said nubia was purchased from the defendant firm prier to the commencement of this suit. The plaintiffs then rested their case. The defendants took no testimony. The plaintiffs bring the case now to final hearing, on the foregoing evidence, without introducing any witness to show the identity of design between what is found in said nubia and in the plaintiffs' patents. The defendants contend that it is not sufficient for the plaintiffs to show merely the sale of the nubia by the defendants, and to leave the court to inspect the nubia and com- pare it with the patents, but that the plaintiffs must produce a wit- ness to testify to identity of design. �In Gorham Co.v. White, 14 Wall. 511, the supreme court consid- ered directly the question of identity in regard to a patent for a design. It held that the true test of identity of design is sameness of appearance, — in other words, sameness of effect upon the eye; that it is not necessary that the appearance should be the same to the eye of an expert, and that the test is the eye of an ordinary observer, the eyea of men generally, of observers of ordinary acuteness, bringing to the examination of the article upon which the design has been placed that degree of observation which men of ordinary intelligence give. The court eompared, in that case, the design of the patent with the ��� �