Keuffel & Esser Co. v. Eugene Dietzgen Co.

The art is a crowded one,, but we think Judge Hand was correct in holding that it does not contain, prior to Payzant, the combination of the three elements specified in the second claim, viz.: (1) Nibs which are rigid, .(2) and which terminate in a circular plane, (3) which plane is beveled to an angle of 45 degrees with the axis of the pen. One or more of these may be found in earlier patents, but no earlier patent shows all three.

The evidence introduced to show commercial success does not indicate very .large sales; but evidently the pen is of use only to' draughtsmen and approval by its user'would be evidenced by a smaller number of total sales than if it were, like the ordinary fountain or’ stylographic pen, an article in common use. Enough sales are proved to show that draughtsmen in considerable numbers buy and use it.

Infringement by the exhibit marked in evidence and concededly of defendant’s manufacture seems to us quite plain.

The decree is affirmed, with costs.