
    AMERICAN RADIATOR CO. v. SHIRLEY RADIATOR & FOUNDRY CO.
    (Circuit Court of Appeals, Seventh Circuit.
    May 3, 1912.)
    No. 1,664.
    Patents (§ 328) — Validity and Infringement — Design for Radiator.
    The AVoolley design patent, No. 36,607, for a design for a steam radiator, held valid, but not infringed.
    Appeal from the Circuit Court of the United States for the District of Indiana.
    
      Suit in equity by the American Radiator Company against the Shirley Radiator & Foundry Company. Decree for defendant, and complainant appeals.
    Affirmed.
    Bill for infringement of design patent No. 36,607, issued to Clarence M. Woolley, October 27, 1893, for an ornamental design for a steam radiator for use in dwelling houses. Defendant’s design is known as the" “Shirley,” and complainant’s as the “Premier.” The two are quite similar in appearance to the casual observer, but differences in detail are quite apparent on closer inspection. The decoration on each is from the pattern of the Acanthus leaf in the form of a foliated scroll, but in the defendant’s design the leaf is turned upside down as compared with the patented one. The form of the top and the logs are also distinct. In one there are three, and in the other four, cross-connections. Both designs are attractive in appearance, are simply but effectively adorned. They have three columns, the two outer ones convex, and the middle one concave, a series of short intermediate bridges between the columns having curved edges, graceful downward diverging legs, and shoulders at the top, also employing the curve or wavy line. The side columns in each are conically curved in cross section, being thicker near the inner edge, and diminishing outward by a compound curve. The accompanying cuts show these features clearly.
    Complainant’s Forms.
    
      
    
    
      Defendant’s Forms.
    
      
    
    Charles K. Offield (Offield, Towle, Graves & Offield and Rolland J. Hamilton, of counsel), for appellant.
    Charles Martindale, for appellee.
    Before KOHLSAAT and MACK, Circuit Judges, and SAN-BORN, District Judge.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Kep’r Indexes
    
   SANBORN, District Judge

(after stating the facts as above). It ¡is not claimed that the Acanthus leaf (found in all of the ancient art), or any of the single elements used by the patentee in his design, are at all new. What he asserts is that he has gathered together into a unitary and harmonious structure the various features of the old art, including the foliated scroll, in simple, chaste, and modest form, and has thus made use of the inventive faculty.

The St. Louis, Premier, and Shirley were exhibited side by side in the courtroom at the time of the argument. We thought then, and further examination convinces us, that defendant’s radiator does not infringe. There is nearly as much difference between the Shirley and Premier as the Premier and St.. Louis. Both patents may be treated as valid, within narrow limits.

Affirmed.  