RODWELL SIGN CO. v. F. TUCHFARBER CO., 127 F. 138

LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. The alleged infringement consists of a sign made of a single sheet of plate tin, bright and shiny, behind a sheet of glass, colored and ornamented on its inner side'. Upon; the sheet metal the words “Moerliens Cincinnati Bottled-Beer” aré stamped in recessed or concave letters. The same words in transparent glass are blocked out or outlined upon the inner side of the colored glass in such manner as to register with the lettering upon the background of tin.

The glass included within the outlined letters is transparent, but colored with a transparent yellow varnish, so as to give to the concave letters behind the appearance of being gilded. The tin and glass sheets are held together by an ordinary paper backing, which is glued or gummed to the back of the tin and edges and border of the covering glass in an ornamental way. It was not new to make detachable letters adapted to be attached by their adverse side to glass or metal or wood.

Many designs covering various ways of attaching single letters or symbols to the front of glass or other background in such manner as to make a sign or name or advertisement are shown by the evidence in the record. Nor was it new to make sunken or recessed letters. Examples of such concave lettering in stone may be witnessed upon monuments, gravestones, etc. So, too, it is shown by most satisfactory evidence that business signs were old, consisting of depressed or sunken letters carved in wood, the concave portion being gilded.

The “Steinau” sign, exhibited by respondent, is a complete example of such ornamental concave lettering in business signs, made and used long prior to the patent in suit. So, too, it is overwhelmingly shown that signs made by stamping the letters or words in thin sheet metal, japanned or colored, the letters having concave surfaces and a raised reverse, were in common use by insurance companies as house signs, indicating that the house to which they were attached was insured by the company advertised by the recessed lettering.

Such signs, made in thin metal, correspond in every way with the tin portion of the infringing sign, as well as with that shown in complainant’s Exhibit “Eibbey Cut Glass.” The colored glass sign in front of respondent’s “Moerlein Beer” sign and complainant’s “Eibbey Glass” sign, with the letters outlined or blocked out in clear glass, are well-known types of the signmakers’ art, as well shown by the- evidence in this record. The respondent's sign is therefore but a combination of two well-known methods of signmaking.

The outlined lettering on the glass registers with the recessed or concave lettering on the sheet metal behind, and produces a somewhat effective appearance. By placing over the clear glass in the blocked-out letters a transparent film of yellow vartiish,- the concave lettering behind is given a gilded appearance. The glass serves, also, to protect the metal lettering from dust, rain, etc. The same thing is done by the complainant, as shown by one of its exhibits, and for this method of signmaking the protection of the patent is invoked.

But it does not follow that signs so constructed are within the scope of complainant’s patent. Indeed, the state of the art to which the patent belongs was such as to forbid the monopoly of this method of signmaking.

Waiving the question as- to whether it would be patentable invention to provide for the placing of glass in front-of a name, sign, or symbol composed, of. sunken or concave letters,, the practice was not novel when this patent:issued.. . . ; - Six unimpeachable witnesses testify to having, before the patent, either made and sold, or to having seen in public'use, in the city of Cincinnati, door name-plates made in this same way. These plates consisted of .a name cut in a suitable block of wood or other material, the letters being recessed or concave.

The obverse side of this recessed tablet was then placed against a plate of clear glass, and both enclosed in a silver-plated frame adapted to be attached to the outside of a door. That no two of these witnesses testify as to the same identical plate, and that none of these old plates are produced, is urged as ground upon which we should hold the anticipation not proven. We are not unmindful of the liability to mistake in oral evidence of an anticipation, and of the rule which requires that the evidence relied upon to overthrow the presumption of novelty should be of a most cogent character. Deering v.

Winona Harvester Works, 155 U. S. 286, 300, 15 Sup. Ct. 118, 39 L. Ed. 153; Amer. Roll Paper Co. v. Weston, 59 Fed. 147, 8 C. C. A. 56. Nevertheless we cannot escape the conviction that this method of making door name-plates is established as convincingly as any such fact can be established where the original

article is not produced. So far as we can see, the witnesses are without bias or incentive to color their evidence. The probability of mistake is reduced to a minimum by the very simple character of the subject about which they testify. The case is therefore quite exceptional, and, if the evidence does in fact produce conviction beyond all reasonable doubt, we are unadvised of any rule which denies to it legal effect in any class of -case, criminal or civil. But we are not at all disposed to concede to the patent any such broad

interpretation as to bring within its scope the infringing device. No hint or suggestion is found in the description of the invention which includes anything other than individual, detachable letters, symbols, or figures. As the evidence shows, and as the patent admits, detachable lettered figures were old, and methods for attaching them Were the subject of a number of patents prior to that of the complainants. ■ But so far as these patents show, and so far as evidence aliunde goes, all former devices related to methods for attaching such letters by their adverse sides to the outside of glass or other surfaces.

The invention the patentee describes was that of letters made concave, with a flat, narrow edge or rim by which they might be attached upon their obverse or front sides to the inner side of a pane of glass. By letters of this character he claimed to produce not only a better effect, due to their concavity, but that they would be protected by the glass from dust, rain, and malicious injury, while at the same time preserving their value as letters easily detachable, and capable of change in grouping.

That this was the object he sought to attain he plainly states in his specifications and that this narrow rim or edge is a necessary difference between his letters and the detachable letters already in common use he also plainly sets out. Unless we limit his claims by confining him to the detachable letters or symbols, having.the rim or edge shown.in his specifications and drawings, whereby each individual letter or symbol is separately attachable, his patent would be broad enough to include that which was not novel, and riot capable of being monopolized.

We need decide no more than that the patent, thus limited, does not include the sign made by the defendant. The decree is accordingly affirmed.