Page:Federal Reporter, 1st Series, Volume 7.djvu/488

 47d fedebaIj bepobteb. �4929, wbich only provides for patents for new and original designs; that this design was known and used by others be- f ore the invention or production of it by the plaintiff ; and that the defendants do not infringe. �Perhaps, as bas been argued for the defendant, the statute was intended to protect such designs only as would be orig- inal and distinctive of themselves, and not those which would be mpre improvements upon others; but, if so, the word "improved," in this patent, is not understood as representing that this design is a mere improvement upon another, espe- cially as no other is mentioned, but is considered to mean that this design is of itself new and distinctive, and improved as compared with others, and, in connection with the new, to represent that it was original with the orator. The evidence shows several pre-existing bird designs, and the testimony of several witnesses is that this is only a bird design for such settings, and that therefore it is not new or original. But none of those shown are like this in appearance, either in outline or detail. Upon all the evidence in respect to them it is not shown at all satisfactorily that settings of this design wei*e either known or used before the orator produced this. �The defendants have sold rings having a setting of the same outline as that represented in the orator's patent, represent- ing a bird upon a branch or twig, with a leaf above the bird, and a panel, or a larger part of the branch in the shape of a panel, and two leaves, at the base of the twIg, in white, or silver and gold colors, and a diamond upon the leaf above. There are two other leaves upon the bird in the defendants' setting. The wings of the bird are in a different position from those of the bird in the plaintiff 's setting, and the upper leaf is turned differently ; but the two leaves below the bird in the defendants' setting are in white or silver color, and some- what resemble the diamonds upon that part of the plaintiff 's; and altogether more is required than to observe and consider the artistic effect of each to bring these differences to notice. Looked at as ornamenta desirable for their beauty or appro- priateness, according to the taste of the wearer, these differ- ences in the details become immaterial. The patent is for ��� �