Page:Federal Reporter, 1st Series, Volume 7.djvu/487

 WOOD V. DOLBT. 476 �WooD V. DoLBT and othera, �[Oireuit Court, 8. D. New York. April 28, 1881.) �1. Design Patent— Section 4929, Rev. St., Cionstbued — " New and �Impboved" EqmvALBKT to "New and Original." �Under section 4929, Rev. St., which provides that a patent may be granted for a n&io and original deeign, where a patent waa grantea for a new and improved design, the patent mentioning no prior design, hM, that the term improved should be construed to mean a new and distinctive design, and improved as compared with othera used ; and, in connection with the term Tiew, that it was original with the patentee. �2. Same— Anticipation. �Where a patent was for a design consisting of the representation of a bird upon a branch or twig, with varions accessories, and the evi- dence showed several pre-existing bird designs, Md, that the design was yet new and original, since none of the alleged anticipations were like it in appearance, either in outline or detail. �3. Same— SiMOiAKiTY rs Aktistic Effeot — Differences in Imma- �terial Details. �Where the similarityin two designs is such that the differences between them are not appreciable by observing their artistic effect, such difierences being merely in detail, are immaterial, and the de- signs will be considered as substantially the same. �4. Same— Appbak ANGE— Attbaotivbnbbs. �The patent is for the appearance which the design adds to the article, making it desirable according to its attractlveness to those observing and wanting it, and it is the right to the exclusive use of this which is secured to the patentee. �In Equity. �William Kemhle Hall, for plaintiff. �Worth Osgood, for defendants. �Wheelee, D. J. This suit is brought for an alleged in- fringement of design patent No. 11,409, issued to the orator for jewelry settings, express.ed in the specification to be for a new and improved design for jewelry settings, consisting of a representation of a bird upon a branch or twig, with a leaf above the bird and a panel at the base of the twig, in white and gold colors, with a diamond upon the leaf and two dia- monds upon the panel. The defences are that the patent for a new and improved design is not within the statute, section ��� �