The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is an action for infringement of design letters patent No. 80,059, issued December 3, 1929 to Frankart, Inc., the plaintiff herein, as assignee of Arthur von Frankenberg, the patentee. The issues are validity and infringement.
The plaintiff is engaged in the manufacture of gift articles, such as table lamps, ash trays, smoking stands, and the like. Von Frankenberg, the patentee, is a sculptor who has been in the employ of the plaintiff corporation and who has designed the Frankart line of gift articles, upwards of one hundred new designs.
The defendant Everlite Novelty Manufacturing Corporation is a company engaged in a similar line of business, and is charged with infringing this patent by the manufacture and sale of smoking stands, Plaintiff's Exhibit 3.
The patent is for a design for a smoking stand as illustrated in the drawing. The design comprises a flat base having a surface ornamentation produced by straight line effects. On the base rests a metal ball which carries a small pedestal, and on the pedestal is mounted a nude figure of a girl with her head thrown back and her arms outstretched upwardly, to support a tray or cup carrying the ash receptacle. No doubt this group is pleasing to a great many people and at the same time serves a useful purpose as a smoking stand. The design is shown in Plaintiff's Exhibit 2. It has attained great commercial success, as over 13,000 have been sold by the plaintiff.
There is a marked difference between mechanical patents and design patents. Design patents usually contain no description; the specification consisting usually of the drawing and a description of the figures therein with a single claim. Rule 81 of the Rules of Practice in the Patent Office reads as follows:
"81. The proceedings in applications for patents for designs are substantially the same as in applications for other patents. Since a design patent gives to the patentee the exclusive right to make, use and vend articles having the appearance of that disclosed, and since the appearance can be disclosed only by a picture of the article, the claim should be in the broadest form for the article as shown."
Design patents are usually judged by the effect they have on the eye, whereas other patents are usually judged by the use to which they may be put. Judge Hough, in Wilson v. Haber Bros (C.C.A. 2) 275 F. 346, 347, pointed out the different between design patents and other patents as follows:
"Whether the problem be of validity, scope, or infringement, the prime difference between patents for other inventions and those for designs is that in the first class the inquiry is, 'What will it do?' whereas in respect of design one always asks, 'How does it look?'"
Design patents are granted as a reward for the giving of a new and pleasing appearance to an article of manufacture, whereby its sale is enhanced. Gorham Mfg. Co. v. White, 14 Wall. (81 U.S.) 511, 20 L. Ed. 731. Untermeyer v. Freund (C.C.) 37 F. 342.
The defendants set up as prior art the following exhibits:
B. A statuette made by the witness Angela.
C. An illustration of the "Statue of Victory World War Memorial for Fifth Ward, Staten Island, New Yrok," published in the Architectural ...