spaced almost exactly as are the letters in the 'Glass' application. In the ball covered by the Eddy patent, the letters are molded into the fabric. The entire surface of the ball above and below the equatorial line is solidly covered by small stars of equal size and obviously of the same color as the fabric of the ball. They likewise are molded into the fabric.
The Montgomery-Ward ball, design 48T3148 which is not patented, is approximately the same size as the 'Glass' ball and the balls described in the Griffiths and Eddy patents, and is shown in Defendant's Exhibit 1 and Plaintiff's Exhibit 2, as a white ball with a black line around the equatorial center with four narrower zigzag lines of the same color extending around the ball in both temperate zones. The polar region is surrounded by diamond-shaped blocks of the same color. There are no letters or numbers on the design.
The Montgomery-Ward design 48T3123 shown in Defendant's Exhibit 1, is an inflated ball. The description in Montgomery-Ward's catalog says 'It is a rubber ball with bright clown decoration in two colors, red and white.' The cut in the catalog indicates that the surface of the ball is red with a white stripe around the equatorial surface, and in the zones opposite the white stripe is to be found pictures of clowns in white upon the red background. This design like the other Montgomery-Ward design, is not patented, and no letters or numerals appear upon the surface of the ball.
Defendant contends that plaintiff's arrangement of the letters and numerals on the 'Glass' design is simply a rearranging and grouping of the letters and numerals shown in the Eddy and Griffiths patents, is not new and novel in design, and therefore, not patentable.
Certainly there is nothing new and nothing novel about the design of either of the Montgomery-Ward balls. One is composed simply of zigzag lines on either side of a solid black line and the connected diamond-shaped blocks around the 'polar region'. It is not novel and cannot be said to represent any inventive genius.
With respect to the other Montgomery-Ward design, i.e., a red ball with a white equatorial line and clowns, I think it is not materially different from many other types of balls which are shown in the catalogs introduced in evidence. It follows pretty generally a pattern to be found in many other types of play balls, particularly those shown in the Miller catalog.
A design patent must involve exercise of inventive genius -- and more than mere skill in the draftsman. Whether or not the design is attractive is not the way in which it appears to the expert, but to the ordinary observer, and certainly the eyes through which the writer of this opinion views the exhibits and the 'Glass' design, are those of an ordinary observer and in no respect, expert.
There certainly is no indication of inventive genius or anything unusual in the attractiveness of the arrangement of the letters on either the Griffiths or the Eddy patent. They are simple A B Cs and 1-2-3-4s appearing on the Griffiths patent, without any attempt at balancing or spacing to add attractiveness, and on the Eddy patent, while the letters are evenly spaced around the equatorial center, they are molded into the fabric and must reasonably be expected to follow the color of the band around this surface. So far as the letters and numerals are concerned, there is greater distinction between the 'Glass' design and either the Griffiths or the Eddy patent, than there is difference between the Eddy and Griffiths patents.
The design of the letters and numerals, the balancing of each with the other upon the surface of the 'Glass' design and the manner in which the letters and numerals are formed, is distinctive and immediately attracts the eye at most any distance at which the letters and the numerals, each of which is approximately three-fourths inch in height, may be seen.
From my own observation of the 'Glass' design and the other exhibits, the 'Glass' design has much greater eye-appeal.
Considerable testimony was introduced to show that the demand by the trade for the 'Glass' design was very much greater than any other of the designs shown in evidence. This of course, of itself, is not sufficient to justify the granting of a patent, but certainly it is persuasive in determining whether or not the design is new and novel and appealing to the eye. The evidence shows that the 10 cents stores and other stores handling novelties were the greatest purchasers of this type ball, and certainly the persons who purchase such commodities for a large number of stores are judges of what is likely to be attractive to consumers.
The mere regrouping of numerals and letters as shown upon the Eddy and Griffith patents would not justify the granting of a patent but Glass has done more than that, it seems to me, and has shown inventive faculties in the method and the manner or the forming of his letters and numerals and the grouping upon the ball.
I am convinced that the 'Glass' design is new, original and ornamental and that the plaintiff is entitled to a patent.
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