BUFFINGTON, District Judge.
This present is one of a series of nine cases brought by William Anderson against sundry defendants for infringements of bis several design mantel patents. The testimony was taken for all cases at once, and they were argued together. The present bill is against W. T. Monroe and Edward T. Germain, alleging infringement of design patent for mantels, No. 19,873, applied for by Anderson the 20th February, 1890, and granted June 3d following. The design in controversy is known as the “Anderson BB Mantel.” On application the bill was heretofore dismissed as to Germain, it being shown that as to him the court bad no jurisdiction. In Ms- answer, Monroe, the respondent, admits "that in August, 1890, he sold mantels of the design shown in the letters patent sued on, but that he did not know of the grant of the patent; denied subsequent infringement; averred that complainant, having before the grant of the patent sold mantels of the design afterwards patented, continued to sell them thereafter without marking them “Patented,” together with the date. He denied the novelty and patentability of the design. In a supplemental answer he set up public sale, use, and exposure to sale, of the designed device, more than two years prior to the application. Tiie novelty and patentability of this design were sustained by this court in Anderson v. Saint, (No. 22, November term, 1890,) 46 Fed. Rep. 760. No proofs now shown lead ns to a different conclusion. Upon the question of prior use and sale a large amount of testimony has been taken, and the intricate and confused questions of fact therein involved have required, at the hands of the court, a most laborious examination.
Where prior use is set up to defeat a patent the burden of proof is upon the party setting it up, and “not only is the burden of proof to make good this defense upon the party setting it up, but it has been held that every reasonable doubt should be resolved against him.” Cantrell v. Wallick, 117 U. S. 695, 6 Sup. Ct. Rep. [400]*400970. The proofs in, the present case do not come up to this standard. Taken in their strongest light, and supported by the most careful analysis and earnest argument of counsel, as they are, we are constrained to say they lack that conclusiveness which should avail to avoid the patent.
To their consideration we now turn. To support the branch of the case at present considered, the respondent called Julian Morrow, manager for Heckert & McCain, lumber dealers of Pittsburgh. He said, in February, 1888, and thereafter, Anderson, the complainant, called on his firm to sell mill work, and, needing mantels, the firm proposed buying. Witness went to complainant’s mill, at Verona or Hulton, a few miles above Pittsburgh, prior to the date of the two freight bills which he produced, dated February 9 and 11, 1888, and was there shown three or four mantels, and made purchases after that. He further says that respondent’s Exhibits Anderson B Mantel and Anderson C Mantel show “the general appearance of the mantels” he saw; that the freight bills calling for nine mantels are the ones purchased, and he produces an account of Anderson against Heckert & McCain, where, under date of February 2d, they are charged with nine mantels. He produces the books of his firm, showing that on February 21st four mantels, which he testifies were part of the foregoing, were sold to George Schmidt, and delivered to his house; that he saw them there, and identifies them as Exhibits Anderson B Mantel, supra, and respondent’s ExMbit Anderson Mantel Ho. 1, both painted red. The Exhibit B, being of the same general appearance as design mantel BB, in controversy, would seem to show conclusively a sale more than two years prior to the. application, February 20, 1888. His attention was called to the fact that on the back of Exhibit B the name of “W. P. Price” was vratten in pencil. He said tliat the first four mantels, (shown in the account,) under date of February 2, 1888, “were shipped to a man named Price, and we bought them from Mr. Anderson, as Mr. Price’s name shows;” that during one of Anderson’s visits he told Mm they were at the depot, where witness sent and got them; that he was able to particularly trace them by the lead-pencil mark. We may state, in passing, that the freight bills for the mantels, dated February 9th and 11th, to wMch witness had already testified, and made from the manifest, showed them sMpped to Heckert & McCain, and not to Price. Brown, the driver of the firm, showed that he had taken the four mantels to Schmidt’s house, and it was also shown that the two red mantels (ExMbits B and Ho. 1) had been detached from the walls of the house, and produced in evidence. These facts seemed to prove, beyond question, that they were two of the four thus bought from Anderson.
The necessity for the application of the rule laid down in the proof of prior use is apparent in the rebuttal testimony. W. P. Price, whose name appears on Exhibit B, was a traveling salesman, and in the spring of 1888 began to sell Anderson mantels, on commission, in connection with grate fronts and other articles he had previously sold. He testified, from a memorandum made in his or[401]*401der book, that, some time subsequent to February 15th, Exhibit ft was shipped to him by Anderson, to have it and three other mantels photographed, and afterwards to let the Knoxville Land Company see them, with a view of ordering some for houses to be built; that the maní els were shipped to him a week or so subsequent to said date, taken to the photographer's, and a picture taken, which picture of Exhibit ft is produced. They were then taken to the land company, -just when, it is not definitely shown, — were not satisfactory, and were afterwards returned to Woodwell’s hardware store by Anderson’s direction. This testimony is corroborated fully by Anderson, who further says lie saw the mantels at Wood well's, disfigured and covered with coal dust; that he went to Heekert, & McCains, and asked the privilege of storing them in their shed, as they were not fit for sale; this was accorded him, and the mantels sent for by Heekert <& McCain; that, a month afterwards, Morrow odd him he had sold (he mantels, and he was paid foi than in a settlement made later. This statement is corroborated by letter of Heekert & McCain to Anderson of March 9th, which, after ordering some i/tanfeL*, and urging haste, says: “We do not want io send ike mantels you sent us oiled., as they are not dean, and are very much injured by sending them to the photographer’s and Woodwell’s.” As to the oilier red mantel, —respondent’s Exhibit Anderson ¡No. 1, — be testifies that it was not made by him, ran) in this lie is corroborated by the workmen in Ids mill. This testimony conclusively snowc (!) that Exhibit 1} was not one of the mantels bought by Heekert It McCain from Anderson. and inclvded in the freight bills of either February 9th or llth; that it was one of Hie Knoxville mantels, and was not placed in the Schmidt house until March 16th; and that on Marca !)., ?PK8, which was less vhan two years before the application, it wa« still on stosvge at J!eeke.H & Mo.Cíéa’s as the property of Anderson. Morrow was called in rebuttal of this testimony, and has ronght by the help of his Jet ter book to fix definitely the time of Mr order as February 2d, and Ms coutuicaLion with Andoruon over designs as between January 19 and February 2, HTML But this does not avail to disprove ¡he dear testhuony in regard to Exhibit Jl. Whatever mantels he did order, mid whenever it was done, it still re mains certain that. EftiiMt B was not one of them, ft appears by ihe account of Heekert £:■
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BUFFINGTON, District Judge.
This present is one of a series of nine cases brought by William Anderson against sundry defendants for infringements of bis several design mantel patents. The testimony was taken for all cases at once, and they were argued together. The present bill is against W. T. Monroe and Edward T. Germain, alleging infringement of design patent for mantels, No. 19,873, applied for by Anderson the 20th February, 1890, and granted June 3d following. The design in controversy is known as the “Anderson BB Mantel.” On application the bill was heretofore dismissed as to Germain, it being shown that as to him the court bad no jurisdiction. In Ms- answer, Monroe, the respondent, admits "that in August, 1890, he sold mantels of the design shown in the letters patent sued on, but that he did not know of the grant of the patent; denied subsequent infringement; averred that complainant, having before the grant of the patent sold mantels of the design afterwards patented, continued to sell them thereafter without marking them “Patented,” together with the date. He denied the novelty and patentability of the design. In a supplemental answer he set up public sale, use, and exposure to sale, of the designed device, more than two years prior to the application. Tiie novelty and patentability of this design were sustained by this court in Anderson v. Saint, (No. 22, November term, 1890,) 46 Fed. Rep. 760. No proofs now shown lead ns to a different conclusion. Upon the question of prior use and sale a large amount of testimony has been taken, and the intricate and confused questions of fact therein involved have required, at the hands of the court, a most laborious examination.
Where prior use is set up to defeat a patent the burden of proof is upon the party setting it up, and “not only is the burden of proof to make good this defense upon the party setting it up, but it has been held that every reasonable doubt should be resolved against him.” Cantrell v. Wallick, 117 U. S. 695, 6 Sup. Ct. Rep. [400]*400970. The proofs in, the present case do not come up to this standard. Taken in their strongest light, and supported by the most careful analysis and earnest argument of counsel, as they are, we are constrained to say they lack that conclusiveness which should avail to avoid the patent.
To their consideration we now turn. To support the branch of the case at present considered, the respondent called Julian Morrow, manager for Heckert & McCain, lumber dealers of Pittsburgh. He said, in February, 1888, and thereafter, Anderson, the complainant, called on his firm to sell mill work, and, needing mantels, the firm proposed buying. Witness went to complainant’s mill, at Verona or Hulton, a few miles above Pittsburgh, prior to the date of the two freight bills which he produced, dated February 9 and 11, 1888, and was there shown three or four mantels, and made purchases after that. He further says that respondent’s Exhibits Anderson B Mantel and Anderson C Mantel show “the general appearance of the mantels” he saw; that the freight bills calling for nine mantels are the ones purchased, and he produces an account of Anderson against Heckert & McCain, where, under date of February 2d, they are charged with nine mantels. He produces the books of his firm, showing that on February 21st four mantels, which he testifies were part of the foregoing, were sold to George Schmidt, and delivered to his house; that he saw them there, and identifies them as Exhibits Anderson B Mantel, supra, and respondent’s ExMbit Anderson Mantel Ho. 1, both painted red. The Exhibit B, being of the same general appearance as design mantel BB, in controversy, would seem to show conclusively a sale more than two years prior to the. application, February 20, 1888. His attention was called to the fact that on the back of Exhibit B the name of “W. P. Price” was vratten in pencil. He said tliat the first four mantels, (shown in the account,) under date of February 2, 1888, “were shipped to a man named Price, and we bought them from Mr. Anderson, as Mr. Price’s name shows;” that during one of Anderson’s visits he told Mm they were at the depot, where witness sent and got them; that he was able to particularly trace them by the lead-pencil mark. We may state, in passing, that the freight bills for the mantels, dated February 9th and 11th, to wMch witness had already testified, and made from the manifest, showed them sMpped to Heckert & McCain, and not to Price. Brown, the driver of the firm, showed that he had taken the four mantels to Schmidt’s house, and it was also shown that the two red mantels (ExMbits B and Ho. 1) had been detached from the walls of the house, and produced in evidence. These facts seemed to prove, beyond question, that they were two of the four thus bought from Anderson.
The necessity for the application of the rule laid down in the proof of prior use is apparent in the rebuttal testimony. W. P. Price, whose name appears on Exhibit B, was a traveling salesman, and in the spring of 1888 began to sell Anderson mantels, on commission, in connection with grate fronts and other articles he had previously sold. He testified, from a memorandum made in his or[401]*401der book, that, some time subsequent to February 15th, Exhibit ft was shipped to him by Anderson, to have it and three other mantels photographed, and afterwards to let the Knoxville Land Company see them, with a view of ordering some for houses to be built; that the maní els were shipped to him a week or so subsequent to said date, taken to the photographer's, and a picture taken, which picture of Exhibit ft is produced. They were then taken to the land company, -just when, it is not definitely shown, — were not satisfactory, and were afterwards returned to Woodwell’s hardware store by Anderson’s direction. This testimony is corroborated fully by Anderson, who further says lie saw the mantels at Wood well's, disfigured and covered with coal dust; that he went to Heekert, & McCains, and asked the privilege of storing them in their shed, as they were not fit for sale; this was accorded him, and the mantels sent for by Heekert <& McCain; that, a month afterwards, Morrow odd him he had sold (he mantels, and he was paid foi than in a settlement made later. This statement is corroborated by letter of Heekert & McCain to Anderson of March 9th, which, after ordering some i/tanfeL*, and urging haste, says: “We do not want io send ike mantels you sent us oiled., as they are not dean, and are very much injured by sending them to the photographer’s and Woodwell’s.” As to the oilier red mantel, —respondent’s Exhibit Anderson ¡No. 1, — be testifies that it was not made by him, ran) in this lie is corroborated by the workmen in Ids mill. This testimony conclusively snowc (!) that Exhibit 1} was not one of the mantels bought by Heekert It McCain from Anderson. and inclvded in the freight bills of either February 9th or llth; that it was one of Hie Knoxville mantels, and was not placed in the Schmidt house until March 16th; and that on Marca !)., ?PK8, which was less vhan two years before the application, it wa« still on stosvge at J!eeke.H & Mo.Cíéa’s as the property of Anderson. Morrow was called in rebuttal of this testimony, and has ronght by the help of his Jet ter book to fix definitely the time of Mr order as February 2d, and Ms coutuicaLion with Andoruon over designs as between January 19 and February 2, HTML But this does not avail to disprove ¡he dear testhuony in regard to Exhibit Jl. Whatever mantels he did order, mid whenever it was done, it still re mains certain that. EftiiMt B was not one of them, ft appears by ihe account of Heekert £:■ McCain wiih Schmidt that on March JOfch Schmidt was charged with two mantels for two returned. To say íhat the mantel wiiich Exhibit B thus replaced in the Schmidt house on March l(5th was n T3B mantel is purely conjectural, and its refutation is the pertinent inquiry why, if a BB mantel was already there, was it replaced by one of a similar design? And, indeed, respondent's counsel argue that it replaced an A mantel. We a,re of opinion the testimony fails to show a. sale by Anderson of the BB design more than two years prior to the date of his application, February 20, 1888, nor does the testimony show an exposure to sale in the Knoxville mantels prior to February 20th. The testimony as to time is, at best, but conjectural, and not definitely proven.
[402]*402It is alleged that respondent has infringed the Anderson BB designs by sales of the Germain B mantel, which is made pursuant to design patent No. 21,155, applied for by. Edward T. Germain 14th October, 1891, and issued 10th November following. The sales are admitted. Infringement thereby is denied. The respective mantels are shown in the accompanying cuts:
It is urged by respondent’s counsel that the Anderson BB specifications show 12 distinct features: (1) Cap pieces, b, at the top of [403]*403pilaster, a; (2) rosettes, G, formed on the cap pieces, b; (*3) beveled lower edges of the cap pieces, b; (”á) a series of reeds, e, on the pilasters, A; (5) beveled outer edges of the pilasters; (6) the deep Y-shaped groove, f, across the pilasters; (®7) a series of reeds, fa, on the frieze, g; (®8) the lower beveled edge of the frieze, g; (9) a quarter round molding, i, beneath the frieze, g; (10) a backing strip, k, having a lower moulded edge;; (li) a moulding, 1, across the strip, k, and caps, b; (12) molding on the upper edge of the mantel board. That the four marked with an asterisk are not found in ¡.he Germain design, and that there are five striking points of difference, viz: (1) In the appearance of the rosette on the cap blocks, they being intagliated in the Germain; (2) in the Germain design there is a raised reeded panel, J, across the frieze, which does not appear in the Anderson design; (3) in the Germain design there is a molding, i, running across the base of the cap piece, which is not found in the Anderson design; (4) in the Germain the pilasters have a U-shaped transverse groove, instead of a deep V-shaped one; (5) in the Ger-main the edge of the mantel is moulded with grooves, while in the Anderson it is moulded with a hollow bevel. It is true in the Germain mantel, Exhibit B, the rosettes are more distinctly intagMaled than those on complainant's exhibit BB, but it will be noted that the specification is not restricted to any special form of rosette. The drawing in the Anderson design is not shaded, and in appearance, as well as in the language of the specification, would include the more restricted style shown by Germain. And, indeed, in the respondent’s Exhibit Anderson Mantel B, (which is urged as constituting a prior sale of BB,) we find a rosette of the same contour as that used in the Germain.
The Anderson frieze has “a series of reeds extending in the direction of its lensrth.” The Germain has reeds extending in the direction of its length, as well, but they are placed on a narrow raised strip placed thereon. The reeded strip is not a material departure, In appearance, from the reeded frieze of the Anderson design, and is made less so by its beveled edges. These make its raised feature even less marked. In the Anderson design the cap blocks taper to the pilasters by a beveled lower edge; in the Germain, the lower edge is also beveled, and a moulding is added, below, which gives the effect of a grooved and deepened bevel. In the Anderson the deep V-shaped groove running transversely across the foot of the pilaster is practically duplicated by a U-shaped groove in the Germain; a difference wliieh close inspection alone reveals. The Anderson mantel board “is molded about its upper front edges,” while in the Ger-main the entire front surface of the shelf is molded by rounded edges and reeds; a slight and unimportant change. The reeds on the Anderson pilasters are omitted in the Germain, but this omission, so long as the beveled edges and transverse grooves are retained, is a trivial one. To the eye the striking lines of the Anderson design are — First, the transverse groove, which gives to the plain face of the pilaster the appearance of a finished and distinct base; secondly, the raised and rosetted caps at the top, which give the distinctive appearance of a capital .to the pilaster; thirdly, the reeded frieze, [404]*404which serves, in appearance, to bind the pilasters. On these distinctive lines the design is based, and on them the minor details are worked out. The same distinctive lines mark the Germain design. In thus analyzing the two, one cannot but feel that the Anderson had thoroughly impressed the designor of the Germain, and that the latter was the outgrowth of a purpose to so change the nonessential details as to seem to have evolved something new, while retaining the general appearance which had proved essential to the popularity of the old. Nor, in this connection, can we lose sight of the fact that Anderson had spent several thousand dollars in experimenting and perfecting his designs before they were finally adopted, that they at once became popular, and that Germain himself copied them before the present patent was issued. And it is a pertinent fact in the present inquiry that the application for the Ger-main design was made a short time after the litigation of Anderson in sustaining this patent had ended in his favor. The departure from the Anderson design has been so slight in the Germain that an ordinary purchaser, who had seen the Anderson in a house, been pleased with it, and wanted it duplicated in his own, would be misled by the statement that the Germain was the Anderson mantel. It is to be noted, also, that imposition would be the easier from the fact that the two articles, in the nature of things, would rarely be placed together for comparison, as braid, spoons, and small articles might, but the mental image of the Anderson mantel, fastened to the wall of a house, would alone be carried by the purchaser to the warehouse of an attempting infringer. Tested by the law of infringement, as laid down in Gorham Go. v. White, 14 Wall. 511, and cases following its lead, we are constrained to hold the respondent has infringed the patent in suit by the sale of the Germain B mantel.
It is alleged that Anderson having simply stamped his mantels, “Our Designs Patented,” and omitted the date, until October or December, 1890, respondent cannot in any way be held liable for a sale made in August, 1890, before he knew of the issue of the patent. What the effect of this might be, were it the sole issue, and the only infringement, we are not called upon to discuss, for the respondent tendered a number of oí her issues, denied novelty and patentability, which have not been sustained. And it has been held (Goodyear v. Allyn, 6 Blatchf. 33, and Association v. Tilden, 14 Fed. Rep. 741; 2 Rob. Pat. § 628, note 4) that this omission does not affect the right to an injunction, however it may affect the question of damages. We are of opinion the complainant’s bill must be sustained. Let a decree be prepared.