Page:Federal Reporter, 1st Series, Volume 5.djvu/377

 MILLES ». SMiTH. 365 �and sell various articles of the jewelry of the design invented by the" cbmplainants, and secured to thëm by iheir letters patent. Eesponsive to that charge, the respondents deny the same, and aver that the same is not true; and they also insist that the claim is bad, because it embraces more than one letter of the alphabet, which proposition is so obviously without merit that it is not deemed necessary to enter into any discussion of the topic. Perry v. Starrett, 14 0. G. 599 ; Simonds on Design Patents, 79. Speaking in the general sense, it is doubtless tme that the test of infringement, in respect to the claims of a design patent, is the same as in respect to a patent for an art, machine, manufacture, or com- position of matter ; but it is not essential to the identity of the design that it should be the same to the eye of an expert. If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same; if the resemblance is such as to deceive sueh an ob- server, and sufficient to induce him to purchase one, suppos- ing it to be the other, — the pne first patented is inf ringed by the other. Gorham ManufgCo. v, White, 14 Wall. 511, 628. Apply that rule to the case befbre the court, and it is so ob- vions that the charge of infringement is sustained by the proof, and by the comparison of the opposing exhibits, that it is scarcely necessary to give the matter any further examina- tion. Both the testimony of the complainants' expert, and the comparison of the exhibits made by the court, are decisive that the manufacture by the respondents is, in the sense of the patent law, substantially the same as that of the com- plainants, -which show that the complainants are entitled to an account. �Decree for complainants. �Enowles, D, 5., concurred. ����