Syllabus.

thing about the alleged sale by her husband as her attorneyin-fact. The acquiescence and agreement on the part of Mrs. Hammekin formed an issue in the case.

It is contended on the part of the defendant, that there was no question of title in the case, and that the sole question was one of boundary; also, that the question being whether the south boundary of the 6000-acre tract was changed from that called for in the original deed from the Hammekins to Cabellero by their request and authority and ratification, the power of attorney from Mrs. Hammekin to her husband, and their deed, were admissible to show that they and Cabellero had not changed the line; that the instruments were not offered or admitted to prove title; and that the above authorities do not apply to a question which is not one of title. But we have remarked sufficiently on this subject. The petition demands judgment for the land and the notice on it says that the action is brought to try title.

The record is very meagre, but we have arrived at a satisfactory conclusion on the case as presented.

The judgment of the Circuit Court is reversed, and the case is remanded to that court with a direction to grant a new trial.

SMITH v. WHITMAN SADDLE COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CONNECTICUT.

No. 188. Argued and submitted March 28, 1893. Decided April 17, 1893.

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Where a new and original shape or configuration of an article of manufacture is claimed in a patent issued under Rev. Stat. § 4929, its utility is an element for consideration in determining the validity of the patent. Gorham Manufacturing Co. v. White, 14 Wall. 511, distinguished. The test of identity of design in the invention covered by such a patent is the sameness of appearance to the eye of an ordinary observer. The saddle, the design for which is protected by letters patent No. 10,844, issued September 24, 1878, to Royal E. Whitman for an improved design for saddles, was made by taking the front half of a saddle previously

Statement of the Case.

known as the Granger tree, and the rear half of a saddle known as the Jenifer or Jenifer-McClellan saddle, changing the Granger tree part so as to have a perpendicular drop of some inches at the rear of the pommel.

In view of this previous condition of the art, the new and material thing protected by those letters patent was the sharp drop of the pommel at the rear, and they were not infringed by the saddles constructed by the plaintiffs in error.

THE Whitman Saddle Company, a corporation organized and existing under and by virtue of the laws of the State of New York, brought this bill of complaint in the Circuit Court of the United States for the district of Connecticut, against Charles D. Smith and Benjamin A. Bourn, citizens of the State of Connecticut, and doing business in the city of Hartford, under the firm name and style of Smith, Bourn & Co., for the alleged infringement of a patent for a “design for saddles," No. 10,844, dated September 24, 1878.

The Circuit Court sustained the patent, adjudged that complainant was entitled to recover of the defendants as infringers, and rendered a decree perpetually enjoining them, and for an amount found due for profits, costs, charges and disbursements, from which decree an appeal was taken to this court. The opinion of Judge Shipman is reported in 38 Fed. Rep. 414.

The specification and claim are as follows:

"Be it known that I, Royal E. Whitman, of Springfield, Hampden County, State of Massachusetts, have invented an improved design for saddles, of which the following is a specification:

"The nature of my design is fully illustrated in the accompanying photographic picture, to which reference is made.

Figure 1 is a side profile view, and Fig. 2 a partial front

view.

"The pommel B rises at the fork to a point on, or nearly on, a horizontal level with the raised and prolonged cantle. The pommel on its rear side falls nearly perpendicularly for some inches, when it is joined by the line forming the profile of the seat. The straight inner side of the pommel (marked b) is joined at c by the line C of the seat. The line C de

Statement of the Case.

scribes a gradual curve to the centre of the seat, from thence gradually rising to the highest point of the cantle D. The cantle is defined in side profile by the lines ef, starting from its outer end in continuous curves, which separate to define the thickness of the cantle before uniting at a point g, near the centre of the saddle, the line f forming the outside and rear edge of the saddle until joined by the line h, which, leaving the line ƒ at an angle, bends to form the rear bearing of the saddle. The line from the front of the pommel B inclines outward for some distance in a nearly straight line, m, before being rounded toward the rear to join the line h, at the point where the stirrup-strap is attached, to thus define the bottom line of the saddle, the outline given by line m from the pommel being the general form of the English saddle-tree known as the 'cut-back."

"A plan view of the saddle shows a centre longitudinal slot extending from pommel to cantle.

"I am aware that portions of the curves employed by me have been used in the designing of saddles; but, when combined with a longitudinally-slotted tree, the lines I employ to give the profile form a new design for saddles, and giving the general idea in the front, lower and rear lines of a sea-fowl or vessel modelled upon the same curves, and by these curves and lines giving the impression of lightness, grace and comfort that could not as well be conveyed by any others, as the impression of comfort is given by the large amount of bearingsurface obtained without undue elevation above the back of the animal, combined with the large seat for the rider, and ightness and grace by the small surface of tree shown in vertical plan, coupied with the form in which it is presented. "Now, having described my invention, what I claim is — "The design for a riding saddle, substantially as shown and described."

The following is the picture referred to:

Mr. Samuel A. Duncan for appellee submitted on his brief,

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court:

Section 4929 of the Revised Statutes provides that: "Any person who, by his own industry, genius, efforts and expense, has invented and produced any new and original design for a manufacture, bust, statue, alto-relievo or bas-relief; any new and original design for the printing of woollen, silk, cotton or other fabrics; any new and original impression, ornament, pattern, print or picture to be printed, painted, cast or otherwise placed on or worked into any article of manufacture; or any new, useful and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon

Opinion of the Court.

payment of the fee prescribed and other due proceedings had, the same as in cases of inventions or discoveries, obtain a patent therefor."

The first three of these classes plainly refer to ornament, or to ornament and utility, and the last to new shapes or forms of manufactured articles; and it is under the latter clause that this patent was granted.

In Gorham Manufacturing Co. v. White, 14 Wall. 511, 524, it was said by this court, speaking through Mr. Justice Strong, that the acts of Congress authorizing the granting of patents for designs contemplated "not so much utility as appearance, and that, not an abstract impression, or picture, but an aspect given to those objects mentioned in the acts.

. And the thing invented or produced, for which a patent is given, is that which gives a peculiar or distinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form. The law manifestly contemplates that giving certain new and original appearances to a manufactured article may enhance its salable value, may enlarge the demand for it, and may be a meritorious service to the public. It, therefore, proposes to secure for a limited time to the ingenious producer of those appearances the advantages flowing from them. Manifestly the mode in which those appearances are produced has very little, if anything, to do with giving increased salableness to the article. It is the appearance itself which attracts attention and calls out favor or dislike. It is the appearance itself, therefore, no matter by what agency caused, that constitutes mainly, if not entirely, the contribution to the public which the law deems worthy of recompense." This language was used in reference to ornamentation merely, and moreover the word "useful," which is in section 4929, was not contained in the act of 1842, under which the patent in Gorham Co. v. White, was granted. So that now where a new and original shape or configuration of an article of manufacture is claimed, its utility may be also an element for consideration. Lehnbeuter v. Holthaus, 105 U. S. 94.