
    F. E. FONSECA & CO. v. RUY SUAREZ & CO.
    (Circuit Court of Appeals, Second Circuit.
    March 14, 1916.)
    No. 235.
    Patents <&wkey;328 — Vapidity and Inyrtngisment — Cigar Wrapper.
    The Fonseca patent, No. 655,549, for a wrapper for cigars, discloses patentable invention, the device, while simple, being novel and of considerable utility; also held infringed.
    Appeal from the District Court of the United States for the Southern District of New York. . *
    Suit in equity by F. F. Fonseca & Co. against Ruy Suarez & Co. Decree for defendant, and complainant appeals.
    Reversed.
    Philip C. Peck, of New York City (Thomas M. Rowlette, of New York City, of counsel), for appellant.
    Max D. Sleuer, of New York City, for appellee.
    Before COXE, WARD, and ROGERS, Circuit Judges.
   COXE, Circuit Judge.

The subject of the patent is a simple wrapper for a cigar which is sufficiently described in the first claim. This claim is as follows:

“A cigar package comprising a cigar and the containing protecting cover», the said cover extending normally heyond the ends of the cigar and having its extended ends twisted to form practically cords which are wound back upon the cover and secured.”

The result is that the cigar is covered in a neat paper case upon which any desired printing may be inscribed, such as the name of the cigar and its maker. The twisted ends form cushions which protect the cigar and the covering protects it when -carried in the pocket or cigar case of the smoker. The nearest approach to the patent is the-Whitney envelope which had a different object in view and has none of the distinctive features of the Fonseca patent.

The patent is on the border line between invention and mechanical skill, but we are inclined to think that we should resolve the doubt in favor of the patent. We think it is in the same category as the metallic castor patent which we recently upheld, which consisted in substituting a cup-shaped metal disk for the ordinary wheel castor. Barry v. Harpoon Co., 209 Fed. 207, 126 C. C. A. 301. See, also, Mahony v. Malcom, 143 Fed. 124, 74 C. C. A. 318; Williams v. String Wrapper Co., 86 Fed. 641, 30 C. C. A. 318; Gandy v. Belting Co., 143 U. S. 587, 12 Sup. Ct. 598, 36 L. Ed. 272.

The wrapper in question has many advantages which appeal to the smoker. It keeps the cigar clean, it prevents it from being broken at the ends if roughly handled and it enables the maker to advertise and identify his cigars which partly by reason of his covers, we may assume, have become popular with the public.

The decree is reversed with costs.  