
    Bergner et al. v. Kaufmann et al.
    
    
      (Circuit Court, S. D. New York.
    
    November 29, 1892.)
    Design Patents—Patentability—Album Cases.
    Design patent No. 20,347, issued November 25, 1890, to Frederick Bergner, for an album case set upright on a baseboard, and having on its exterior an oval, ornamental frame, with an open center, is invalid, since the patentee invented neither the album case nor the ornamental frame, but merely conceived the idea of placing the ornament on the case; and this conception is not patentable, for the statute only provides for patents on designs for articles of manufacture and for ornaments to be placed upon or worked into such articles.
    In Equity. Suit by Frederick Bergner and others against Isaac Kaufmann and others for infringement of a patent. Bill dismissed.
    
      W. P. Preble, Jr., for orators.
    
      A. v. Briesen, for defendants. .
   Wheeler, District Judge.

This suit is brought upon design patent No. 20,347, dated November 25, 1890, for an album case set on a baseboard in an upright or nearly vertical position, having on its exterior an. oval, ornamental frame with an open center. The defendants put dimond-shaped mirrors, with such ornamental borders, on similar album cases. This style of album case is not new. The patent therefore must be held to be for an ornament upon the case as an article of manufacture, under the third clause of section 4929, Rev. St., providing for design patents. Such ornamental frames were old, and well and generally known. The orator, who is the patentee, testifies, in answer to question 25: “I make no claim to be the designer of this frame.” Besides this, the defendants’ mirror does not look like this frame, and would not infringe the patent for this ornament.

The orator did not design an album case, proper; nor an ornament, proper, for an album case; but he appears to have conceived the idea of placing such an ornament upon an album case. The statute provides for patents upon designs for articles of manufacture, and for patents upon ornaments to be placed upon or worked into such articles, but does not appear to provide for a patent for the mere placing of an ornament on such articles. This patent does not, therefore, appear to be valid, or to be infringed. Let a decree be entered dismissing the bill.  