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the Northern District of Ohio; D. C. West- tensity, day or night. This is claimed by enhaver, Judge.

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An action was brought in the District Court by the Protex Signal Company against the defendants above named, doing business under the firm name and style of the Beacon Motor Lamp Manufacturing Company, for the infringement of United States letters patent No. 1,432,872 and 1,432,873 and design patent No. 58,916, granted to Oscar Kroehle, all of which patents were assigned by him to the plaintiff. The charge of infringement was limited in the District Court to claims 2 and 3 of patent No. 1,432,872 and claims 1, 3, 4, 5, 6, 7, 9, and 10 of patent 1,432,873. Both of these patents were issued to Kroehle upon the same date.

The District Court held the design patent 58,916, and all the claims in issue of patents 1,432,872 and 1,432,873, invalid for lack of novelty and invention, and claims 2 and 3 of patent 1,432,872, even if valid, not infringed. A decree was entered dismissing the bill of complaint.

The Kroehle invention covered by the two mechanical patents relates to a lens for use in stop signals to be attached to the rear end of automobiles. The design patent, No. 58,916, relates to the same subject-matter. It is claimed by Kroehle that his device is equally as effective in the daylight and sunlight as in the night season, and that, notwithstanding there were a number of stop signals in the prior patent art at the time he filed his application, none of these provided a signal equally effective in daytime as in the night, and for that reason had never met with commercial success.

The lens of the Kroehle patent is provided with a plurality of concavities or indentations upon the rear face thereof, so that each ray of light as it comes from the reflector strikes upon these concavities, whereby the light is refracted and each beam split up into a multitude of smaller beams, which extend from the front of the lens in conical or fan shape, so that the rays of light are visible upon either side, or above or below, the device at an angle of approximately 25 degrees. These indentations upon the rear surface of the lens are so distributed to provide a uniform distribution of light, visible when illuminated, with unimpaired in

Kroehle to be a new and novel feature, not found in the lens of the prior art. It is

fully described in claim 10 of patent 1,432,

873, which reads as follows:

"A signal lens comprising a glass plate having a front which comprises forwardly projecting light-transmitting portions forming a sign and of danger-indicating color, and also comprises a forwardly projecting light-transmitting portion extending circumferentially of said sign and of danger-indicating color, said front having substantially opaque surfaces extending between the light-transmitting portions of the front, and the back of the lens having substantially all of its portions which are behind said lighttransmitting portions provided with rearwardly flaring cavities which have a depth centrally of substantially a sixteenth of an inch and a diameter of substantially oneeighth of an inch at their diametrically larger

ends."

A. J. Hudson, of Cleveland, Ohio (Thurston, Kwis & Hudson, of Cleveland, Ohio, on the brief), for appellant.

Charles E. Brock, of Cleveland, Ohio (Hull, Brock & West, of Cleveland, Ohio, on the brief), for appellees.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

PER CURIAM. It is unnecessary to discuss in detail the prior patent art. It is sufficient to say that a careful consideration of all of the prior patents relating particularly to "stop signals" introduced in evidence and the testimony in reference to a large number of others of the same character, not only compels the conclusion that none of them anticipate Kroehle, but also emphasizes the fact that many competitors were endeavoring, without success, to produce an automobile signal light that would operate as effectively in the daylight as in the night. The witness Bunyon, who as late as May 14, 1918, obtained a patent upon a signal device for automobiles known as the "Tell-youwhen," testified that he kept himself very well posted on all the new signals that came out; that he tried to produce a signal that would have the effect of Protex, and in that connection said: "I could not-just why, I do not know-produce a signal that had the daylight effect that Protex did."

While the familiar prism glass has long been known, yet Rowe in 1917 obtained a patent (1,241,886) for adapting this wellknown prism to automobile headlights, and

11 F.(2d) 43

Hall in 1903 obtained a patent (736,722) for adapting the same to an illuminated stationary sign. These two patents are the only ones introduced in evidence that involve the same or similar principles as the Kroehle lens.

The object of the Rowe invention was to provide a lens eight or nine inches in diameter for use in automobile headlights that would not only eliminate the dangerous, blinding glare of the headlights then in use, but would also diffuse the light upon the highway, both directly in front of and to either side of the machine. To accomplish these objects he devised a lens with recessed or indented portions inclining inwardly to a central flat portion or face. Each of these indented portions "is of the inverted shape of the frustum of a pyramid, and the flat parts form part of the flat front face of the lens." There are two and a fraction pyramid prisms in each square inch of surface. The size of the lens may be varied according to the number of these prisms that are used, but there is no suggestion that a change in the size of the prisms themselves will produce the same or a different effect. It is the claim of Rowe that a lens so constructed will eliminate the blinding glare dangerous in a headlight of this size, and diffuse the light upon the highway directly in front and to either side of the machine. No testimony has been introduced tending to prove that it will not accomplish this purpose.

Kroehle's problem was to increase this glare, which by reason of the small surface through which it penetrated would not be dangerous, but would merely aid in making the signal light as effective in the daytime as at night, and also to devise a lens that could be produced with facility and at a low cost. To accomplish these purposes he devised a lens with numerous rearwardly flaring cavities, at least 40 and preferably 70 to each square inch of area, preferably hemispherical and arranged in substantially straight and substantially parallel rows, with raised letters on the front and an outer forwardly facing annular and substantially plain surface concentric in relation to the inner face. The projecting features of the letters and outward circle are presumably for the purpose. of economy in manufacture. The teaching of the Rowe patent in relation to means to soften and diffuse refracted rays of artificial light would in no wise suggest to Kroehle or any other inventor that the same principle might also be employed to intensify these rays. In fact, it would seem that the teaching of Rowe would tend to a different con

clusion; yet there seems to be no controversy but that Kroehle has, by adaptation of the same principle, produced a lens that will operate as effectively in the daytime as at night.

Hall's invention, No. 736,722, for illuminated stationary signs, especially such as are designed to be illuminated at nighttime, approaches very much more nearly to the Kroehle idea than does Rowe. While Hall states that his sign will present a brilliant and at the same time artistic effect, both in the nighttime and during the day, it is clear that he did not contemplate the illumination of his sign by artificial light in the daytime, but rather that by reason of the sunlight in the daytime and artificial light at night, it would produce a brilliant and artistic appearance. His lens, however, is so widely different in construction from the Kroehle lens that it would not appear to be practical, either from the point of utility or economy, in an automobile stop signal. It is certain that it furnished no suggestion to Kroehle, for he never saw or heard of it prior to this suit, and it is equally certain that it furnished no suggestion whatever to the 142 inventors who were giving serious thought for many years to the mastery of this problem.

The Hall device is provided with a glass plate (4), with characters formed by painting over the rear surface of the plate, or by interposing any opaque or mainly opaque substance to the rear of the glass and forming the characters therein. A second plate (B) of transparent material is provided on its rear side with prismatic or other projections "which are adapted to transmit light through the plate B, and thence through the character openings. Instead of two lenses, Kroehle uses but one, and the characters up on his lens are raised letters constituting an integral part of the lens itself, thereby producing a unitary signal, simpler and cheaper in construction and more particularly adapted for use upon a moving vehicle, where multiple parts are not so easily maintained in exact relation to each other as in a stationary structure.

For the reasons stated, we do not think that Hall anticipates claims 3, 6, or 10 of Kroehle patent 1,432,873.

[1] Claims 2 and 3 of Kroehle's patent 1,432,872 are in no wise restricted in specifying which part is more and which part is less translucent. Given the broad scope which they were clearly intended to have, they involve only two things: First, contrasting degrees of translucency between the letters and the background; and, second,

protruding letters. It is conceded that the contrasting degree of translucency was old, and that it was a common thing to make glass letters protruding. Even if it were conceded that this combination had not theretofore existed, we do not think that the adding of this element of protrusion to existing sign or signal surfaces constituted invention, especially in the absence of any showing that there is any optical connection between the protruding letters and the pitted rear surface, and in this connection it may be noted that these claims do not call for such pitted surface. For the reasons stated these two claims are invalid. [2,3] Claims 1, 4, 5, and 7 of patent No. 1,432,873 are broad enough to include any and all forms of light-directing surface irregularities, and, so construed, are invalid. Claim 9 is also broader than the state of the art permits. Claims 3, 6, and 10 are more limited, but are broad enough to cover the full scope of Kroehle's invention. So limited, they are valid claims.

The defendant at first used the form which had closely fixed and small vertical rib lines on this interior surface. Then it adopted almost precisely plaintiff's form of surface with spherical indentations. This we think was an infringement of the valid claims in suit. Its later form, which is substantially the same as its first, does not infringe.

[4] There is nothing in the prior art that in any way anticipates the design of the Kroehle patent, No. 58,916. Lehnbeuter v. Holthaus, 105 U. S. 94, 96, 26 L. Ed. 939; Ashley v. Weeks-Numan Co., 220 F. 899, 901, 136 C. C. A. 465. The design of this patent presents a pleasing, compact, artistic, and attractive appearance. It is said, how

ever, that this design includes no new or novel features. If that claim were conceded, nevertheless the reassembling or regrouping of familiar forms and decorations may constitute a patentable design. Imperial Glass Co. v. A. H. Heisey & Co. (C. C. A.) 294 F. 267, 269; Zidell v. Dexter (C. C. A.) 262 F. 145, 146; Ashley et al. v. WeeksNuman Co., supra.

It is further said that every alleged ornamental feature of the Kroehle design patent embodies a necessary mechanical function. In a measure that may be true. On the

other hand, it is equally true that the lens of Kroehle will, no doubt, function equally as well in a structure wholly different in form or design.

[5] It is true that a design patent may not be utilized for the purpose of securing a monopoly on mechanical devices. North British Rubber Co., Ltd., v. Racine Rubber Tire Co. (C. C. A.) 271 F. 936, 939. Kroehle has not attempted to do this, but, on the contrary, has secured separate patents on his claimed mechanical invention, and the arrangement and grouping of the features of his mechanical patent in an attractive ornamental design does not preclude the validity of his design patent, if otherwise valid. North British Rubber Co., Ltd., v. Racine Rubber Tire Co., supra; Dietz Co. v. Burr & Starkweather Co., 243 F. 592, 594, 156 C. C. A. 290; Ashley et al. v. Weeks-Numan Co., supra, page 901 (136 C. C. A. 465). For the reasons stated, we are of the opinion that Kroehle's design patent No. 58,916 is valid. Gorham Co. v. White, 81 U. S. (14 Wall.) 511, 20 L. Ed. 731. The arrangement of colors and light effects, first devised by Kroehle and copied by defendant, is not without importance.

[6] It appears from the evidence and exhibits that the appellee has bodily adopted, not only the exact size, but also the artistic and distinctive features, of Kroehle's design No. 58,916, without any effort or apparent intent to distinguish therefrom. While there is some slight difference between the outer concentric ring of Kroehle and the appellee's structure, the difference is so unimportant that to the eye of an ordinary observer, giving such attention as a purchaser usually gives to designs, they would appear to be

substantially the same. The rule is, as stated in Gorham Co. v. White, supra, that "if the resemblance is such as to deceive such an observer and sufficient to induce him to purchase one, supposing it to be the other, the one first patented is infringed by the other." [7] Claims 3, 6, and 10 of Kroehle's patent No. 1,432,873 are valid and infringed by appellee's second form. The design patent No. 58,916 is valid, and is infringed by each form of appellee's device.

Reversed and remanded, for further proceedings in accordance with this opinion.

med 2732 0717, HLED. 856, 47 sup Ct. 106.
2732001?
71 LED

WL 273 PROCTER & GAMBLE CO.. FEDERAL TRADE COMMISSION

11 F.(2d) 47

PROCTER & GAMBLE CO. et al. v. FEDERAL TRADE COMMISSION.

47

Frank F. Dinsmore, of Cincinnati, Ohio (Dinsmore, Shohl & Sawyer, of Cincinnati,

(Circuit Court of Appeals, Sixth Circuit. Jan- Ohio, on the brief), for petitioners.
uary 5, 1926. Rehearing Denied

April 7, 1926.)

No. 4237.

I. Trade-marks and trade-names and unfair competition 802, New, vol. 8A Key-No. Series-Findings of fact by Federal Trade Commission, supported by testimony, are conclusive.

Under Federal Trade Commission Act, § 5 (Comp. St. § 8836e), findings of fact by Federal Trade Commission, supported by testimony, are conclusive.

2. Trade-marks and trade-names and unfair competition 802, New, vol. 8A Key-No. Series-Trade Commission may determine whether soap contains effective amount of naphtha, question not being one of opinion. The Federal Trade Commission, in determining propriety of use of word "naphtha" in brand name of soap, claimed to contain no effective amount of naphtha, has power to determine the minimum amount of naphtha which is an effective amount; this being an ultimate fact, which may be definitely established by evidence, and not mere matter of opinion.

3. Trade-marks and trade-names and unfair com

petition 68-Labeling as naphtha soap and soap products containing insufficient naphtha to be effective as a cleansing ingredient held unfair competition.

Naming, labeling, and advertising soap and soap products, which do not contain sufficient naphtha to be effective as a cleansing ingredient, or to substantially enhance their value and cleansing power, as a naphtha soap, is unfair competition in commerce, and a violation of Act Sept. 26, 1914 (Comp. St. §§ 8836a-8836k), creating Federal Trade Commission.

4. Trade-names and trade-marks and unfair competition 802, New, vol. 8A Key-No. Series-Regulatory order of Federal Trade Commission, governing quantity of naphtha in soap at time of sale, held improper.

Order of Federal Trade Commission, prohibiting manufacturer from using word "naphtha" or its equivalent in name or advertising of soap or soap products, which did not at time of and on sale to consuming public contain at least 1 per cent. by weight of naphtha, held invalid, in view of the volatile nature of naphtha resulting in evaporation; proper regulation being one based on amount of naphtha placed in product at time of manufacture.

Petition to Review an Order of the Federal Trade Commission.

Petition by the Procter & Gamble Company and the Procter & Gamble Distributing Company to review proceedings and two orders of the Federal Trade Commission on complaint charging petitioners with unfair competition. One order affirmed, the other vacated, and cause remanded for further proceedings.

Henry A. Cox, of Washington, D. C. (W. H. Fuller, of Washington, D. C., on the brief), for respondent.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

DONAHUE, Circuit Judge. This is a petition to review the proceedings and orders of the Federal Trade Commission, upon a complaint charging these petitioners with unfair methods of competition in commerce in violation of the Federal Trade Commission Act (38 Stat. 717 [Comp. St. §§ 8836a8836k]).

Since 1837 the Procter & Gamble Company have been engaged in the manufacture of soap and soap products. The Procter & Gamble Distributing Company sells these products. In 1904 the Procter & Gamble Company began the manufacture of a soap known and advertised in the trade as "P. & G., the White Naphtha Soap," and later commenced the manufacture of "Naphtha Soap Chips" and "Star Naphtha Washing Powder." These products have a very large sale throughout the United States. It is charged, among other things, in the second amended complaint, that the respondents, by direct statements in published advertisements, and by names, brands, and labels, falsely represent to the public that these products made and sold by them contain naphtha in an amount sufficient to be effective as a cleansing ingredient.

The Commission found from the evidence that the petroleum distillate found in the soap products of the respondents manufactured between 1912 and 1920-21, was kerosene; that kerosene is uniformly distinguished from naphtha by the trade and the purchasing and consuming public; that the market price of kerosene is, and for more than seven years has been, substantially lower than that of naphtha, and that the designation of kerosene in soap or soap products as naphtha was a misrepresentation to and a deception upon the public purchasing such soap and soap products; that the soap and soap products manufactured and sold by respondents since 1920 contain less than onehalf of 1 per cent. of naphtha, and that the use of the trade-names and brands containing the word "naphtha," and the use of the word "naphtha," constitute misrepresentations and deception upon the purchasing public, for the reason that neither of these products contains naphtha in an amount sufficient to be

effective as a cleansing ingredient, or to enhance substantially their value and cleansing

power.

Based upon these findings, the Commission entered an order that the respondents, the Procter & Gamble Company and the Procter & Gamble Distributing Company, their respective officers, agents, representatives, servants, and employés, "do cease and desist, in the course of commerce as defined in said act of Congress, from:

"(1) Using the word 'naphtha,' or its equivalent, in the brand name of any soap or soap product offered for sale or sold by respondents, or otherwise incidental to its advertisement and sale, if and when such soap or soap product contains the petroleum distillate known and sold as kerosene, and the word 'naphtha' is so used to designate the addition of said kerosene to or its presence in such soap or soap product.

"(2) Using the word 'naphtha,' or its equivalent, in the brand name of any soap or soap product offered for sale or sold by respondents, or otherwise incidental to its advertisement and sale, if and when such soap or soap product normally contains at the time of and upon its sale to the consuming public, no naphtha or naphtha in an amount of 1 per cent. or less by weight thereof." [1] Under the provisions of section 5 of the Federal Trade Commission Act (Comp. St. § 8836e) the findings of fact by the Commission, if supported by testimony, are conclusive. We do not think it important whether kerosene is, or is not, naphtha in a scientific or legal sense. The question is whether the consuming public recognizes a distinction between the two, and believe and understand that a soap containing naphtha is a better cleansing agency than a soap containing kerosene. Upon this proposition the finding of the Commission is sustained by substantial evidence.

The findings by the Federal Trade Commission that the soap products manufactured by the respondent and marketed under the names above mentioned contain sometimes no naphtha, and never more than approximately one-half of 1 per cent. by weight, and that this amount of naphtha is not sufficient to be effective as a cleansing ingredient, or substantially to enhance their value and cleansing power, are sustained by substantial evidence.

[2] It is claimed, however, on the part of the petitioners, that the amount of naphtha to be used as an ingredient in the manufacture of soap or soap products, in order to be effective as a cleansing ingredient is a matter

Some

of opinion only. With the conclusion drawn by the petitioners we cannot agree. difficulties may be encountered in determining the minimum amount of naphtha necessary to be used in order to enhance the cleansing power of soap and soap products; but whether defendant's products do or do not contain a sufficient amount to be effective in any degree as a cleansing ingredient is an ultimate fact that may be definitely established by the evidence. For this reason we think the case of American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 S. Ct. 33, 47 L. Ed. 90, has no application.

[3] This court is also of the opinion that the naming, labeling, and advertising of a soap or soap product as naphtha soap, which does not contain sufficient naphtha to be effective as a cleansing ingredient, and substantially to enhance their value and cleansing power when used by the consuming public, are unfair methods of competition in commerce, and constitute a violation of the act of Congress approved September 26, 1914, entitled "An act to create a Federal Trade Commission, to define its powers and duties, and for other purposes."

[4] These conclusions reached by this court upon the questions presented by this record would require an affirmance of order No. 2, entered by the Commission, were it not for the fact that it further appears from the evidence that naphtha is a volatile matter, and that, if soap or soap products containing naphtha do not speedily reach the consumer, a large, but indeterminate, amount of naphtha will escape by evaporation. For this reason the order of the Commission that the soap or soap products of the respondents must contain naphtha in an amount of more than 1 per cent. by weight at the time they are sold to the consuming public is, for the reasons stated, wholly impossible of performance, unless an unreasonably large amount of naphtha is used in their manufacture. The amount of naphtha that may evaporate before reaching the consumer depends largely upon circumstances over which the respondents have no control. For this reason we think the order, if any order is to be made, should be directed to the amount of naphtha respondents should be required to put into their soap and soap products at the time of manufacture.

This is a question that involves the consideration of a great many facts not disclosed by the record. For this reason, order No. 2 is vacated, and the cause remanded to the Federal Trade Commission, to take such

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