PELOUZE SCALE & MFG. CO. v. AMERICAN CUTLERY CO. et al., 102 F. 916

After the foregoing statement of the case, GROSSOUP, Circuit Judge, delivered the opinion of the court, as follows: Design, in the view of the patent law, is that characteristic of a physical substance which, by means of lines, images, configuration, and the like, taken as a whole, makes an impression, through the eye, upon the mind of the observer. The essence of a design resides, not in the elements individually, nor in their method of arrangement, but in the tout ensemble — in that indefinable whole that awakens some sensation in the observer’s mind.

Impressions thus imparted may be complex or simple; in one a mingled impression of gracefulness and strength, in another the impression of strength alone. But whatever the impression, there is attached in the mind of the observer, to the object observed, a sense of uniqueness and character. The pith of the design under consideration does not reside alone in the upright standard with its laterally projecting arm. Like standards and arms — for instance, in sewing machines and notarial stamps — are common in the useful arts.

The standard, the arm, and the dial, as a whole, conveying the impression that the dial, with the weights common to a scale, is supported by the unaided strength of the standard and arm alone, is the underlying concept of the design. Its claim to novelty and merit as a design, as expressed in the terms of the patent, resides in this appearance of strength. A. single glance at the appellees’ Scale Frame reveals the absence of such appearance. The observer’s mind sees at once that the attenuated elbow — a single thickness of sheet metal — would not bear the weights ordinarily imposed upon scale frames.

The web leading from the dial to the base is neither a non-essential nor a subterfuge — it is seen instantly to be a necessary aid in the task of upholding the load. The impressions conveyed by a look at the two designs are entirely dissimilar; one is that of a strong arm held out to support the load and sufficient to its purpose; the other that of a box-scale frame, each part of which — the frontal sheet included— is essential to support the weight. No one who has caught a sense of the individuality of the former could be misled into confounding it with the latter.

There is, in our opinion, no infringement shown in this case, and the decree of the Circuit Court must, therefore, be affirmed.