Keuffel & Esser Co. v. Eugene Dietzgen Co.

Second Circuit

Keuffel & Esser Co. v. Eugene Dietzgen Co.

232 F. 729, 146 C.C.A. 655, 1916 U.S. App. LEXIS 1878

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 15, 1916

DocketNo. 172

StatusPublished

This text of 232 F. 729 (Keuffel & Esser Co. v. Eugene Dietzgen Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keuffel & Esser Co. v. Eugene Dietzgen Co., 232 F. 729, 146 C.C.A. 655, 1916 U.S. App. LEXIS 1878 (2d Cir. 1916).

Pincite

Opinion

PER CURIAM.

The art is a crowded one,, but we think Judge Hand was correct in holding that it does not contain, prior to Payzant, the combination of the three elements specified in the second claim, viz.: (1) Nibs which are rigid, .(2) and which terminate in a circular plane, (3) which plane is beveled to an angle of 45 degrees with the axis of the pen. One or more of these may be found in earlier patents, but no earlier patent shows all three.

The evidence introduced to show commercial success does not indicate very .large sales; but evidently the pen is of use only to' draughtsmen and approval by its user'would be evidenced by a smaller number of total sales than if it were, like the ordinary fountain or’ stylographic pen, an article in common use. Enough sales are proved to show that draughtsmen in considerable numbers buy and use it.

Infringement by the exhibit marked in evidence and concededly of defendant’s manufacture seems to us quite plain.

The decree is affirmed, with costs.

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PER CURIAM.

The art is a crowded one,, but we think Judge Hand was correct in holding that it does not contain, prior to Payzant, the combination of the three elements specified in the second claim, viz.: (1) Nibs which are rigid, .(2) and which terminate in a circular plane, (3) which plane is beveled to an angle of 45 degrees with the axis of the pen. One or more of these may be found in earlier patents, but no earlier patent shows all three.

The evidence introduced to show commercial success does not indicate very .large sales; but evidently the pen is of use only to' draughtsmen and approval by its user'would be evidenced by a smaller number of total sales than if it were, like the ordinary fountain or’ stylographic pen, an article in common use. Enough sales are proved to show that draughtsmen in considerable numbers buy and use it.

Infringement by the exhibit marked in evidence and concededly of defendant’s manufacture seems to us quite plain.

The decree is affirmed, with costs.

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232 F. 729, 146 C.C.A. 655, 1916 U.S. App. LEXIS 1878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keuffel-esser-co-v-eugene-dietzgen-co-ca2-1916.