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

Kroehle to be a new and novel feature, not Action by the Protex Signal Company found in the lens of the prior art. It is against Isadore F. Feniger and others, do fully described in claim 10 of patent 1,432,

873, which reads as follows: ing business as the Beacon Motor Lamp

“A signal lens comprising a glass plate Manufacturing Company. From a judgment for defendants, plaintiff appeals. Reversed having a front which comprises forwardly and remanded.

projecting light-transmitting portions form

ing a sign and, of danger-indicating color, An action was brought in the District and also comprises a forwardly projecting Court by the Protex Signal Company against light-transmitting portion extending circumthe defendants above named, doing business ferentially of said sign and of danger-inunder the firm name and style of the Bea- dicating color, said front having substancon Motor Lamp Manufacturing Company, tially opaque surfaces extending between the for the infringement of United States let- light-transmitting portions of the front, and ters patent No. 1,432,872 and 1,432,873 and the back of the lens having substantially all design patent No. 58,916, granted to Oscar of its portions which are behind said lightKroehle, all of which patents were assigned transmitting portions provided with rearby him to the plaintiff. The charge of in- wardly flaring cavities which have a depth fringement was limited in the District Court centrally of substantially a sixteenth of an to claims 2 and 3 of patent No. 1,432,872 inch and a diameter of substantially oneand claims 1, 3, 4, 5, 6, 7, 9, and 10 of eighth of an inch at their diametrically larger patent 1,432,873. Both of these patents were

ends." issued to Kroehle upon the same date.

A. J. Hudson, of Cleveland, Ohio (ThurThe District Court held the design patent 58,916, and all the claims in issue of ston, Kwis & Hudson, of Cleveland, Ohio, patents 1,432,872 and 1,432,873, invalid for on the brief), for appellant. lack of novelty and invention, and claims

Charles E. Brock, of Cleveland, Ohio 2 and 3 of patent 1,432,872, even if valid, (Hull

, Brock & West, of Cleveland, Ohio,

on the brief), for appellees. not infringed. A decree was entered dismissing the bill of complaint.

Before DENISON, DONAHUE, and The Kroehle invention covered by the two MOORMAN, Circuit Judges. mechanical patents relates to a lens for use in stop signals to be attached to the rear end PER CURIAM. It is unnecessary to disof automobiles. The design patent, No. 58,- cuss in detail the prior patent art. It is suf916, relates to the same subject matter. It is ficient to say that a careful consideration of claimed by Kroehle that his device is equal- all of the prior patents relating particularly as effective in the daylight and sunlight as ly to "stop signals" introduced in evidence in the night season, and that, notwithstand- and the testimony in reference to a large ing there were a number of stop signals in number of others of the same character, not the prior patent art at the time he filed only compels the conclusion that none of his application, none of these provided a sig- them anticipate Kroehle, but also emphanal equally effective in daytime as in the sizes the fact that many competitors were ennight, and for that reason had never met with deavoring, without success, to produce an commercial success.

automobile signal light that would operate The lens of the Kroehle patent is provid- as effectively in the daylight as in the night. ed with a plurality of concavities or indenta. The witness Bunyon, who as late as May 14, tions upon the rear face thereof, so that each 1918, obtained a patent upon a signal device ray of light as it comes from the reflector for automobiles known as the "Tell-youstrikes upon these concavities, whereby the when," testified that he kept himself very light is refracted and each beam split up in- well posted on all the new signals that came to a multitude of smaller beams, which ex- out; that he tried to produce a signal that tend from the front of the lens in conical or would have the effect of Protex, and in that fan shape, so that the rays of light are connection said: "I could not-just why, I visible upon either side, or above or below, do not know-produce a signal that had the the device at an angle of approximately daylight effect that Protex did.” 25 degrees. These indentations upon the While the familiar prism glass has long rear surface of the lens are so distributed to been known, yet Rowe in 1917 obtained a provide a uniform distribution of light, visi- patent (1,241,886) for adapting this wellble when illuminated, with unimpaired in- known prism to automobile headlights, and

a

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11 F.(20) 43 Hall in 1903 obtained a patent (736,722) for clusion; yet there seems to be no controversy adapting the same to an illuminated station- but that Kroehle has, by adaptation of the ary sign. These two patents are the only same principle, produced a lens that will ones introduced in evidence that involve the operate as effectively in the daytime as at same or similar principles as the Kroeble night. lens.

Hall's invention, No. 736,722, for illumiThe object of the Rowe invention was to nated stationary signs, especially such as are provide a lens eight or nine inches in diame- designed to be illuminated at nighttime, apter for use in automobile headlights that proaches very much more nearly to the would not only eliminate the dangerous, Kroehle idea than does Rowe. While Hall blinding glare of the headlights then in use, states that his sign will present a brilliant but would also diffuse the light upon the and at the same time artistic effect, both in highway, both directly in front of and to ei- the nighttime and during the day, it is clear ther side of the machine. To accomplish that he did not contemplate the illumination these objects he devised a lens with recessed of his sign by artificial light in the daytime, or indented portions inclining inwardly to a but rather that by reason of the sunlight in central flat portion or face. Each of these the daytime and artificial light at night, it indented portions "is of the inverted shape would produce a brilliant and artistic apof the frustum of a pyramid, and the flat pearance. His lens, however, is so widely parts form part of the flat front face of the different in construction from the Kroehle lens." There are two and a fraction pyramid lens that it would not appear to be practical, prisms in each square inch of surface. The either from the point of utility or economy, in size of the lens may be varied according to an automobile stop signal. It is certain that the number of these prisms that are used, it furnished no suggestion to Kroehle, for he but there is no suggestion that a change in never saw or heard of it prior to this suit, the size of the prisms themselves will produce and it is equally certain that it furnished the same or a different effect. It is the no suggestion whatever to the 142 inventors claim of Rowe that a lens so constructed will who were giving serious thought for many eliminate the blinding glare dangerous in a years to the mastery of this problem. headlight of this size, and diffuse the light The Hall device is provided with a glass upon the highway directly in front and to plate (A), with characters formed by painteither side of the machine. No testimony has ing over the rear surface of the plate, or by been introduced tending to prove that it will interposing any opaque or mainly opaque not accomplish this purpose.

substance to the rear of the glass and formKroehle's problem was to increase this ing the characters therein. A second plate glare, which by reason of the small surface (B) of transparent material is provided on through which it penetrated would not be its rear side with prismatic or other prodangerous, but would merely aid in making jections "which are adapted to transmit light the signal light as effective in the daytime as through the plate B, and thence through the at night, and also to devise a lens that could character openings. Instead of two lenses, be produced with facility and at a low cost. Kroehle uses but one, and the characters up To accomplish these purposes he devised a on his lens are raised letters constituting lens with numerous rearwardly flaring cavi- an integral part of the lens itself, thereby ties, at least 40 and preferably 70 to each producing a unitary signal, simpler and square inch of area, preferably hemispheri- cheaper in construction and more particularcal and arranged in substantially straight and ly adapted for use upon a moving vehicle, substantially parallel rows, with raised let- where multiple parts are not so easily mainters on the front and an outer forwardly fac- tained in exact relation to each other as in ing annular and substantially plain surface a stationary structure. concentric in relation to the inner face. The For the reasons stated, we do not think projecting features of the letters and out that Hall anticipates claims 3, 6, or 10 of ward circle are presumably for the purpose Kroehle patent 1,432,873. of economy in manufacture. The teaching of [1] Claims 2 and 3 of Kroehle's patent 1,the Rowe patent in relation to means to soft- 432,872 are in no wise restricted in specifyen and diffuse refracted rays of artificial ing which part is more and which part is light would in no wise suggest to Kroehle or less translucent. Given the broad scope any other inventor that the same principle which they were clearly intended to have, might also be employed to intensify these they involve only two things: First, conrays. In fact, it would seem that the teach- trasting degrees of translucency between the ing of Rowe would tend to a different con- letters and the background; and, second, protruding letters. It is conceded that the other hand, it is equally true that the lens contrasting degree of translucency was old, of Kroehle will, no doubt, function equally and that it was a common thing to make as well in a structure wholly different in glass letters protruding. Even if it were form or design. conceded that this combination had not there. [5] It is true that a design patent may not tofore existed, we do not think that the be utilized for the purpose of securing a adding of this element of protrusion to ex- monopoly on mechanical devices. North isting sign or signal surfaces constituted in- British Rubber Co., Ltd., v. Racine Rubber vention, especially in the absence of any Tire Co. (C. C. A.) 271 F. 936, 939. Kroehle showing that there is any optical connection has not attempted to do this, but, on the conbetween the protruding letters and the pitted trary, has secured separate patents on his rear surface, and in this connection it may claimed mechanical invention, and the arbe noted that these claims do not call for rangement and grouping of the features of such pitted surface. For the reasons stated his mechanical patent in an attractive orthese two claims are invalid.

namental design does not preclude the va[2,3] Claims 1, 4, 5, and 7 of patent No. lidity of his design patent, if otherwise valid. 1,432,873 are broad enough to include any North British Rubber Co., Ltd., v. Racine and all forms of light-directing surface ir- Rubber Tire Co., supra; Dietz Co. v. Burr regularities, and, so construed, are invalid. & Starkweather Co., 243 F. 592, 594, 156 Claim 9 is also broader than the state of C. C. A. 290; Ashley et al. v. Weeks-Numan the art permits. Claims 3, 6, and 10 are Co., supra, page 901 (136 C. C. A. 465). more limited, but are broad enough to cov- For the reasons stated, we are of the opinion er the full scope of Kroehle's invention. So that Kroehle's design patent No. 58,916 is limited, they are valid claims.

valid. Gorham Co. v. White, 81 U. S. (14 The defendant at first used the form Wall.) 511, 20 L. Ed. 731. The arrangewhich had closely fixed and small verticalment of colors and light effects, first derib lines on this interior surface. Then it vised by Kroehle and copied by defendant, adopted almost precisely plaintiff's form is not without importance. of surface with spherical indentations. This [6] It appears from the evidence and exhibwe think was an infringement of the valid its that the appellee has bodily adopted, not claims in suit. Its later form, which is sub- only the exact size, but also the artistic and stantially the same as its first, does not in- distinctive features, of Kroehle's design No. fringe.

58,916, without any effort or apparent in[4] There is nothing in the prior art that tent to distinguish therefrom. While there in any way anticipates the design of the is some slight difference between the outer Kroehle patent, No. 58,916. Lehnbeuter v.

concentric ring of Kroehle and the appelHolthaus, 105 U. S. 94, 96, 26 L. Ed. 939; lee's structure, the difference is so unimportAshley v. Weeks-Numan Co., 220 F. 899, ant that to the eye of an ordinary observer, 901, 136 C. C. A. 465. The design of this patent presents a pleasing, compact, artistic

, giving such attention as a purchaser usualand attractive appearance. It is said, how- ly gives to designs, they would appear to be ever, that this design includes no new or

substantially the same. The rule is, as stated novel features. If that claim were conced- in Gorham Co. v. White, supra, that "if the ed, nevertheless the reassembling or regroup

resemblance is such as to deceive such an obing of familiar forms and decorations may

server and sufficient to induce him to purconstitute a patentable design. Imperial chase one, supposing it to be the other, the Glass Co. v. A. H. Heisey & Co. (C. C. A.) one first patented is infringed by the other." 294 F. 267, 269; Zidell v. Dexter (C. C. [7] Claims 3, 6, and 10 of Kroehle's patent A.) 262 F. 145, 146; Ashley et al. v. Weeks- No. 1,432,873 are valid and infringed by apNuman Co., supra.

pellee's second form. The design patent No. It is further said that every alleged orna- 58,916 is valid, and is infringed by each form mental feature of the Kroehle design patent of appellee's device. embodies a necessary mechanical function. Reversed and remanded, for further proIn a measure that may be true. On the ceedings in accordance with this opinion.

elnur 273700717 71 L al. 86, 47 ug Ct. 106.

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COMMISSION

47 11 F.(2d) 47 PROCTER & GAMBLE CO. et al. v, FEDER- Frank F. Dinsmore, of Cincinnati, Ohio AL TRADE COMMISSION.

(Dinsmore, Shohl & Sawyer, of Cincinnati, (Circuit Court of Appeals, Sixth Circuit. Jan. Ohio, on the brief), for petitioners. uary 5, 1926. Rebearing Denied

Henry A. Cox, of Washington, D. C. (W. April 7, 1926.)

H. Fuller, of Washington, D. C., on the No. 4237.

brief), for respondent.
1. Trade-marks and trade-names and unfalr

Before DONAHUE, MOORMAN, and
competition Om80/2, New, vol. 8A Key-No. KNAPPEN, Circuit Judges.
Series-Findings of fact by Federal Trade
Commission, supported by testimony, are

DONAHUE, Circuit Judge. This is a conclusive,

Under Federal Trade Commission Act, $ 5 petition to review the proceedings and orders (Comp. St. $ 8836e), findings of fact by Federal of the Federal Trade Commission, upon a Trade Commission, supported by testimony, are complaint charging these petitioners with conclusive.

unfair methods of competition in commerce in 2. Trade-marks and trade-names and unfair violation of the Federal Trade Commission

competitionem 80/2, New, vol. 8A Key-No. Act (38 Stat. 717 [Comp. St. $$ 8836a-
Series-Trade Commission may determine 8836k]).
whether soap contains effective amount of
naphtha, question not being one of opinion.

Since 1837 the Procter & Gamble Com-
The Federal Trade Commission, in deter- pany have been engaged in the manufacture
mining propriety of use of word “naphtha" in of soap and soap products. The Procter &
brand name of soap, claimed to contain no ef- Gamble Distributing Company sells these
fective amount of naphtha, has power to deter: products. In 1904 the Procter & Gamble
mine the minimum amount of naphtha which
is an effective amount; this being an ultimate Company began the manufacture of a soap
fact, which may be definitely established by known and advertised in the trade as "P. &
evidence, and not mere matter of opinion. G., the White Naphtha Soap," and later com-
3. Trade-marks and trade-names and unfair com- menced the manufacture of "Naphtha Soap

petition Om68–Labeling as naphtha soap and Chips” and “Star Naphtha Washing Powsoap products containing insufficient naphtha der.” These products have a very large sale to be effective as a cleansing Ingredient held throughout the United States. It is charged, unfair competition.

Naming, labeling, and advertising soap and among other things, in the second amended soap products, which do not contain sufficient complaint, that the respondents, by direct naphtha to be effective as a cleansing ingredi- statements in published advertisements, and ent, or to substantially enhance their value and by names, brands, and labels, falsely reprecleansing power, as a naphtha soap, is unfair sent to the public that these products made competition in commerce, and a violation of Act and sold by them contain naphtha in an Sept. 26, 1914 (Comp. St. 88 8836a-8836k), creating Federal Trade Commission.

amount sufficient to be effective as a cleansing

ingredient.
4. Trade-names and trade-marks and unfair
competition 80/2, New, vol. 8A Key-No.

The Commission found from the evidence
Series—Regulatory order of Federal Trade that the petroleum distillate found in the soap
Commission, governing quantity of naphtha products of the respondents manufactured
in soap at time of sale, held improper.

between 1912 and 1920–21, was kerosene; Order of Federal Trade Commission, pro

that kerosene is uniformly distinguished hibiting manufacturer from using word "naphtha” or its equivalent in name or adver- from naphtha by the trade and the purtising of soap or soap products, which did not chasing and consuming public; that the at time of and on sale to consuming public con

market price of kerosene is, and for more tain at least 1 per cent. by weight of naphtha; than seven years has been, substantially lowheld invalid, in view of the volatile nature of naphtha resulting in evaporation; proper regu- er than that of naphtha, and that the desiglation being one based on amount of naphtha nation of kerosene in soap or soap products placed in product at time of manufacture.

as naphtha was a misrepresentation to and Petition to Review an Order of the Fed- a deception upon the public purchasing such

soap and soap products; that the soap and eral Trade Commission.

soap products manufactured and sold by rePetition by the Procter & Gamble Com- spondents since 1920 contain less than onepany and the Procter & Gamble Distribut- half of 1 per cent. of naphtha, and that the ing Company to review proceedings and two use of the trade-names and brands containing orders of the Federal Trade Commission on the word "naphtha," and the use of the word complaint charging petitioners with unfair "naphtha," constitute misrepresentations and competition. One order affirmed, the other deception upon the purchasing public, for vacated, and cause remanded for further the reason that neither of these products conproceedings.

tains naphtha in an amount sufficient to be effective as a cleansing ingredient, or to en- of opinion only. With the conclusion drawn hance substantially their value and cleansing by the petitioners we cannot agree. Some power.

difficulties may be encountered in determinBased upon these findings, the Commis- ing the minimum amount of naphtha necession entered an order that the respondents, sary to be used in order to enhance the cleansthe Procter & Gamble Company and the ing power of soap and soap products; but Procter & Gamble Distributing Company, whether defendant's products do or do not their respective officers, agents, representa- contain a sufficient amount to be effective in tives, servants, and employés, “do cease and any degree as a cleansing ingredient is an desist, in the course of commerce as defined ultimate fact that may be definitely estabin said act of Congress, from:

lished by the evidence. For this reason we “(1) Using the word 'naphtha,' or its think the case of American School of Magequivalent, in the brand name of any soap or netic Healing v. MeAnnulty, 187 U. S. 94, soap product offered for sale or sold by re- 23 S. Ct. 33, 47 L. Ed. 90, has no applicaspondents, or otherwise incidental to its ad- tion. vertisement and sale, if and when such soap [3] This court is also of the opinion that or soap product contains the petroleum dis- the naming, labeling, and advertising of a tillate known and sold as kerosene, and the soap or soap product as naphtha soap, which word ‘naphtha' is so used to designate the does not contain sufficient naphtha to be efaddition of said kerosene to or its presence fective as a cleansing ingredient, and subin such soap or soap product.

stantially to enhance their value and cleans“(2) Using the word 'naphtha,' or its ing power when used by the consuming pubequivalent, in the brand name of any soap lic, are unfair methods of competition in or soap product offered for sale or sold commerce, and constitute a violation of the act by respondents, or otherwise incidental to of Congress approved September 26, 1914, its advertisement and sale, if and when such entitled "An act to create a Federal Trade soap or soap product normally contains at Commission, to define its powers and duties, the time of and upon its sale to the consuming and for other purposes.” public, no naphtha or naphtha in an amount [4] These conclusions reached by this court of 1 per cent. or less by weight thereof." upon the questions presented by this record [1] Under the provisions of section 5 of the would require an affirmance of order No. 2, Federal Trade Commission Act (Comp. St. entered by the Commission, were it not for § 8836e) the findings of fact by the Commis- the fact that it further appears from the sion, if supported by testimony, are conclu- evidence that naphtha is a volatile matter, sive. We do not think it important whether and that, if soap or soap products containkerosene is, or is not, naphtha in a scientific ing naphtha do not speedily reach the conor legal sense. The question is whether the sumer, a large, but indeterminate, amount of consuming public recognizes a distinction be- naphtha will escape by evaporation. For this tween the two, and believe and understand reason the order of the Commission that the that a soap containing naphtha is a better soap or soap products of the respondents cleansing agency than a soap containing ker- must contain naphtha in an amount of more osene. Upon this proposition the finding of than 1 per cent, by weight at the time they the Commission is sustained by substantial are sold to the consuming public is, for the evidence.

reasons stated, wholly impossible of performThe findings by the Federal Trade Com- ance, unless an unreasonably large amount mission that the soap products manufactured of naphtha is used in their manufacture. The by the respondent and marketed under the amount of naphtha that may evaporate benames above mentioned contain sometimes no fore reaching the consumer depends largely naphtha, and never more than approximately upon circumstances over which the respondone-half of 1 per cent. by weight, and that ents have no control. For this reason we this amount of naphtha is not sufficient to think the order, if any order is to be made, be effective as a cleansing ingredient, or sub- should be directed to the amount of naphtha stantially to enhance their value and cleans- respondents should be required to put into ing power, are sustained by substantial evi- their soap and soap products at the time of dence.

manufacture. [2] It is claimed, however, on the part of This is a question that involves the conthe petitioners, that the amount of naphtha sideration of a great many facts not disto be used as an ingredient in the manufac- closed by the record. For this reason, order ture of soap or soap products, in order to be No. 2 is vacated, and the cause remanded to effective as a cleansing ingredient is a matter the Federal Trade Commission, to take such

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