EDISON ELECTRIC APPLIANCE CO. v. FITZGERALD MFG. CO.

EDISON ELECTRIC APPLIANCE CO. v. FITZGERALD MFG. CO. Circuit Court of Appeals, Second Circuit. May 6, 1929. No. 317. A. D. Salinger, of Boston, Mass. (Fish, Richardson & Neave, of Boston, Mass., of counsel), for appellant. Charles L. Sturtevant, of Washington, D. C. (Sturtevant, Mason & Porter, of Washington, D. C., of counsel), for appellee. Before SWAN and AUGUSTUS N. HAND, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The design is in substance an addition of the prior art round waffle iron of Griswold to the glowing coil stove of Mersick & Co. We find it unnecessary to pass upon the validity of the patent. If its validity be assumed, we agree with the District Court that there is no infringement by defendant. Although servile imitation is not required to constitute infringement, a patentee who claims only the design “as shown” is limited to substantially the form disclosed in his drawing. Ashley v. Tatum (C. C. A.) 186 F. 339; American Fabrics Co. v. Richmond Lace Works (C. C. A.) 24 F.(2d) 365. No feature of the plaintiff’s design is precisely copied, and there are striking differences in configuration and general appearance — so much so that, if infringement were to be determined by our own inspection, we can see no reasonable excuse for a buyer to mistake defendant’s article for plaintiff’s. It is admitted that the trade will readily distinguish between them, but the opinion was expressed by several witnesses for the plaintiff that the ordinary customer might not. These witnesses were not disinterested. They sold plaintiff’s goods, and naturally would resent defendant’s competition. We find no error in the court’s substituting his own opinion for theirs. The impression created by the design must be derived from the thing patented, and not by the selection of one or more features of which the observer particularly approves. See Whiting Mfg. Co. v. Alvin Silver Co. (C. C. A.) 283 F. 75, 81. The decree is affirmed.