strictly construed, and, so construed, the defendant does not infringe it any more than do Schoenhut and Lincoln. The spring, however, adopted by the complainant, is an old one, and may be found in the Leaman patent of 1858. Many pertinent patents in the prior art have not been referred to, but sufficient has been said, I think, to show that the patents in suit, if sustained, must be construed on very narrow lines. The claims cannot be interpreted broadly without invalidating the pat ents. I have reached the conclusion, therefore, that the defendant does not infringe either of the patents in suit as claimed. Hence the bill will be dismissed, with costs. HS EARLE MFG. CO. v. CLARK & PARSONS CO. (Circuit Court, D. Maine. July 1, 1907.) PATENTS-DESIGNS-GRASS HOOKS. No. 551. The Earle design patent, No. 30,478, for a grass cutting blade, and the Tilden design patent, No. 32,227, for a grass hook, are each valid design patents; the designs shown being for implements more ornamental and attractive in appearance than those of the prior art, and therefore more salable and "useful," within the meaning of Rev. St. § 4929 [U. S. Comp. St. 1901, p. 3398]. Also, held infringed. In Equity. On final hearing. Clifford, Verrill & Clifford, for complainant. HALE, District Judge. This suit is brought to restrain the infringement of design patent No. 30,478, for a grass cutting blade, and design patent No. 32,227, for a grass hook. The record shows that these patents relate to the same subject, and have been used conjointly. The bill alleges that the infringements complained of are upon their conjoint use. The defenses are anticipation and want of patentability. Section 4929 of the United States Revised Statutes. [U. S. Comp. St. 1901, p. 3398], at the time the patents in issue were granted, provided that: "Any person who, by his own industry, genius, efforts, and expense, has invented and produced any new and original design for a manufacture, bust. statue, alto-relievo, or bas-relief; any new, and original design for the printing of woolen. silk, cotton, or other fabrics; any new and original impression, ornament, patent, print, or picture to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon payment of the fee prescribed, and other due proceedings had the same as in cases of inventions or discoveries, obtain a patent therefor." The amendment of May, 1902, amends this section, so that it reads. as follows: "Any person who has invented any new, original, and ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law and other due proceedings had, the same as in cases of inventions or discoveries covered by section forty-eight hundred and eighty-six, obtain a patent therefor." The amendment does not present any question which is material in this cause. The statute is intended to afford protection to an inventor who has produced a design as set forth in the law. The statute contemplates not utility so much as appearance. The word "use ful" was introduced by the amendment of 1870, and required that the shape should embrace some new utility; but the utility or usefulness within the meaning of the statute is held to apply only to the appearance of the manufactured article, and not to have the construction which the same word has in the section providing for patents for useful inventions. The whole intendment of the statute is pointed out in Gorham Company v. White, 14 Wall. 511, 20 L..Ed. 731, in which, in speaking for the Supreme Court, Mr. Justice Strong says: "The law manifestly contemplates that giving certain new and original appearances to a manufactured article may enhance its salable value, may enlarge the demand for it, and may be a meritorious service to the public. It is the appearance itself which attracts attention and calls out favor or dislike. It is the appearance itself, therefore, no matter by what agency caused, that constitutes mainly, if not entirely, the contribution to the public which the law deems worthy of recompense." In Westinghouse Electric, etc., Co. v. Triumph Electric Co., 97 Fed. 101, 38 C. C. A. 65, in speaking for the Court of Appeals of the Sixth Circuit, Judge Taft pointed out that by the act of 1870 the word "useful" was transferred from the office of qualifying patterns and prints to that of qualifying shapes or configurations of matter. He quotes from Mr. Commissioner Hall in Ex parte Schulze-Berge, 42 O. G. 293: "The subject of invention, so far as form or shape or configuration is concerned, must be useful in the sense that it tends to promote pleasure, refine ment, comfort, depending upon the sense of the beautiful. * Invention in this field of art relates to the intangible, and its power consists in its abil ity to awaken pleasant and agreeable sensations, conceptions, and thoughts, and the usefulness involved is that which brings about these results.” In Rowe v. Blodgett & Clapp Co., 112 Fed. 61, 50 C. C. A. 120, the Circuit Court of Appeals for the Second Circuit followed the principles of the Gorham Case, and sustained the opinion of Judge Townsend, quoting from his language as follows: "Design patents refer to appearance, not utility. Their object is to encourage works of art and decoration which appeal to the eye, to the æsthetic emotions, to the beautiful. A horseshoe calk is a mere bit of iron or steel, not intended for display, but for an obscure use, and adapted to be applied to the shoe of a horse for use in snow, ice, and mud. The question an examiner asks himself while investigating a device for a design patent is not, 'What will it do? But 'How does it look? 'What new effect does it produce upon the eye? The term 'useful,' in relation to designs, means adaptation to producing pleasant emotions. There must be originality and beauty. Mere mechanical skill is not sufficient." Walker on Patents (4th Ed.) § 375, reads as follows: "Design patents cover appearances only, and not uses. Appearances of designs are to be judged by synthetic observation, rather than by analytic inspection. The fact that an analysis of two forms of design discloses differences between them is insufficient to show lack of that substantial identity of appearance, which constitutes infringement. Such a question of identity is to be decided on the basis of the opinions of average observers, and not upon the basis of the opinions of experts." In the recent case of West Disinfecting Co. v. Frank (C. C.) 146 Fed. 388, in speaking for the Circuit Court of the Southern District of New York, Judge Hazel said: "It is well settled that the originator of a design cannot claim the distinction of being an inventor, unless he has produced a salable article, which is not only original, but which possesses the characteristic and essential element of beauty or ornamentation, or that which imparts to it a peculiar or distinctive appearance. * That invention may be involved in reproducing an old and well-known vendable article in such manner as to give it an ornate appearance, the origination, being useful and for display, is undeniable. But there must be originality and beauty in the subject of the design, as the mere adaptation of old forms to new purposes does not involve invention, notwithstanding any ornamentation or pleasing configuration which may render the article more convenient or salable. * * Hence the rule may be accepted as well settled that design patents are granted because of appearance, and not with reference to mechanical usefulness." This opinion was confirmed in 149 Fed. 423, 79 C. C. A. 359. The word "useful" is not to be found in the present statute, which I have fully quoted; but, with the interpretation which the courts have given to that word, the case at bar would present no different questions if it had arisen under the present statute. 1. On the question of patentability, it is urged by the respondent that both the design patents in suit are not patentable as design patents; but are attempts to cover mechanical constructions by means of design patents, and are void. It is true that much of the evidence in support of the patents relates to mechanical results, and tends to sustain the respondent's contention that whatever is useful in the subject-matter of the patent is due entirely to the mechanical effect achieved by the construction of the implement. Upon a careful study of the whole record, I find that the case is, in my opinion, brought within the principles announced by the Supreme Court in Gorham Co. v. White, supra, and followed in the recent case of West Disinfecting Co. v. Frank, supra. Upon giving a careful examination to the implement made from the design, and comparing it with other implements in the prior art, I find that it presents a much more ornate and attractive appearance than any other article brought to my attention. Mr. Bird testifies that the design presents an ornamental and attractive grass hook, and that he is strengthened in this belief by the fact that, while he had used a grass hook of the old form, he chanced to see the complainant's grass hook made under this design, and that he purchased it because of its appearance. He testifies as an expert, but his testimony falls within the class which is held by the courts to be of great value in passing upon a patent. The inventor testifies as to his delay in taking out the patent until he could present all the attractive features as they appear in the design now before the court. The question of design is clearly to be decided on the basis of the opinion of average observers. How does the thing look? Is it an attractive design? Is it calculated to make the implement salable? Applying the familiar principles of the law relating to this subject, I am of the opinion that both patents of the complainant are patentable as design patents. The articles made from these designs present an attractiveness which commends them to users. The bodily imitation by the respondents of the exact patented construction shown by the complainants is as marked as it was in West Disinfecting Co. v. Frank, supra, which is commented upon by the Circuit Court of Appeals as an element of some value to the court in persuading it of the patentability of the design. 2. Upon the question of anticipation, nothing in the prior art has been called to my attention which is, in my opinion, an anticipation. The alleged anticipatory devices appear in the mechanical art, and none of them affect the question of invention contained in these design patents. The patent itself is entitled to be held as prima facie evidence of invention and want of anticipation. And this evidence is not overcome by anything which appears in the record. A decree may be entered for the complainant as praved for in the bill, with costs. DOVER et al. v. GREENWOOD et al. (Circuit Court, D. Rhode Island. July 1, 1907.) No. 2,664. PATENTS-SUIT TO OBTAIN PATENT EVIDENCE. A suit brought under Rev. St. § 4915 [U. S. Comp. St. 1901, p. 3392], to obtain the issuance of a patent, is not revisory, but an original suit in equity; and testimony taken in interference proceedings before the Patent Office, although between the same parties, is incompetent and inadmissible, unless a foundation is laid for its introduction as secondary evidence. In Equity. On defendants' motion that the interference record be made a part of the record in the case. For former opinion, see 143 Fed. 136. Alexander P. Browne and Horatio E. Bellows, for complainants. Wilmarth H. Thurston and James H. Thurston, for defendants. BROWN, District Judge. The bill in equity is brought under section 4915 of the Revised Statutes [U. S. Comp. St. 1901, p. 3392], and prays that this court may decree that the complainants are entitled to letters patent. The case has been before this court on demurrer to the bill. Dover v. Greenwood (C. C.) 143 Fed. 136. The defendants now move that an order be entered directing that the record and evidence in interference proceedings shall be made a part of the record and evidence in this case. It is alleged that the interference proceedings involved the same issue as the present case, viz., the issue of priority of invention between Dover and Greenwood. The purpose of this motion, made during the taking of defendants' proofs and in consequence of objection, is "that the defendants may be advised whether it will be necessary for them to retake for the purposes of this case the testimony of witnesses already fully taken in said interference case." No controversy arises. over the materiality of such portions of the interference record as are relevant for the purpose of proving admissions or for the purpose of cross-examination. The defendants apparently desire to avoid the necessity of compliance with the equity rules which govern the taking of testimony, in order to save the production of witnesses in the pres ent case. Testimony given orally or by deposition in another case is secondary evidence, which is admissible when the viva voce testimony or examination of the deponent is not attainable. Weeks on Law of Depositions, 6. Speaking of evidence at law Mr. Wigmore says, in his work on Evidence (volume 2, § 1402): "The principle upon which depositions and former testimony should be resorted to is the simple principle of necessity; i. e., the absence of any other means of utilizing the witness' knowledge." See, also, sections 1414, 1415. In Rutherford v. Geddes, 4 Wall. 220, 18 L. Ed. 343, in an admiralty appeal, it seems to have been held that depositions cannot be read in admiralty, any more than at common law, without some sufficient reason being shown why the witness was not produced at the hearing. In Stein v. Bowman, 13 Pet. 209, 223, 10 L. Ed. 129, it was held that the depositions were secondary evidence, not admissible without proof of diligence in endeavoring to procure the attendance of the witness. In Tappan v. Beardsley, 10 Wall. 427, 435, 19 L. Ed. 974, it was said: "As to Taylor's deposition, the fact that he was a competent witness in the present suit, and could have been used by the plaintiff as such, is sufficient to exclude his deposition taken in another suit, even if Tappan had been a party to that suit." In Weeks on the Law of Depositions it is stated that the rule con, cerning the subject is the same at law and in equity. See Taylor on Evidence, §§ 461, 472 et seq., 1576, 1577. In Ecaubert v. Appleton, 67 Fed. 917, 924, 15 C. C. A. 73, the Circuit Court of Appeals for the Second Circuit said: "The printed copy of the testimony in the interference proceedings before the Patent Office was properly objected to upon the grounds of irrelevancy. This suit is an independent one, although between the same parties as in the Patent Office proceeding. The testimony of the various witnesses was not offered because they were dead, or unavoidably absent; but the whole volume containing the testimony of the witnesses who had also been examined in this suit was presented, as if it was admissible in bulk." The complainants also cite In re Squire, 3 Banning & Arden, 133; Clow v. Baker (C. C.) 36 Fed. 692; Stonemetz v. Brown Co. (C. C.) .57 Fed. 601. The Supreme Court (In re Hien, Petitioner, 166 U. S. 432, 17 Sup. Ct. 624, 41 L. Ed. 1066) points out clearly the difference between the bill in equity provided for by section 4915 and the revisory proceedings under section 4914. The present bill being an original bill, the |