Plaintiff, by its complaint, seeks damages and injunction against defendants for alleged infringement of plaintiff’s Design Patent, which defendants assert to be invalid.

Defendants have now moved for summary judgment and the hearing of said motion has been had and the court has given careful consideration to all points and authorities and affidavits filed, the devices concerned and the oral argument of counsel.

Design Patent, Des. 192,610, dated April 17, 1962, for Straw Dispenser was issued to Jerome Berghoff pursuant to application filed November 3, 1961, Ser. No. 67374. Plaintiff contends that the Superior Court of the State of California, in the case of Harold Leonard & Co., Inc., et al., v. Duplex Straw Dispenser Company, in Superior Court case No. 792115, decided in September, 1963, adjudged the said Design Patent involved herein to be valid. Defendants deny this but assert that the Superior Court action did adjudge that the defendants did not unfairly compete. The Findings of Fact and Conclusions of Law and Judgment in the Superior Court case are set forth as Exhibits E and F to defendants’ motion for summary judgment. The complaint in the Superior Court action alleged libel on the part of the defendants therein resulting from the publication of three letters, and the court held that the said letters involved were published by the defendants under a qualified privilege. This court does not find that the State court made any Findings or Conclusions as to the validity of the said Design Patent. The memorandum opinion of the court in that case, relied on by plaintiff herein, may not be used to supplement the Findings of the court even though the said memorandum opinion could be said to hold that the design patents were valid. Ohlinger v. U. S., 219 F.2d 310 at 311 (9th Cir. 1955).

The straw dispenser of plaintiff, which it was stipulated was manufactured and sold prior to November 3,1960, (one year prior to the filing of the application for the Design Patent), was presented to the court at the hearing of the motion for summary judgment together with the Duplex dispenser now being manufactured and sold under the Design Patent. It was stipulated that this court could inspect and consider said dispenser in its ruling on the pending motion for summary judgment.

Plaintiff urges that the present dispenser differs from that advertised and sold before November 3, 1960, in that it has a new stainless brush exterior finish, a new step down in the push down lever, a small change in the angle on the tabs to receive the straw and additional reinforcing on the bottom of the dispenser. Photographs of the dispenser before November, 1960, and the one manufactured and sold under the Design Patent are set forth as Exhibits A, B and C to the Gross affidavit attached to the defendants’ motion for summary judgment. The court has examined the said dispensers and concludes that the changes in design are of little or no significance insofar as concerns appearance or otherwise and that the defendants did, more than one year prior to November 3, 1960, and for several years prior thereto, advertise, manufacture and sell a dispenser very similar to that described in the said Design Patent, and the court concludes that said Design Patent is in valid for lack of invention and by reason of anticipation in the prior art ( 35 U.S.C. § 102 ). There must be a substantial difference in a design over the prior art in order that said design be patentable. The Court of Customs and Patent Appeals, in In re Lamb, 286 F.2d 610 , observed at page 611:

The Court of Appeals, Ninth Circuit, in Jaybee Manufacturing Corporation v. Ajax Hardware Manufacturing Corporation, 287 F.2d 228 , states at page 230 of its opinion:

Judge Carter, in Patriarca Mfg., Inc., et al., v. Sosnick, 169 F.Supp. 204 (D.C. N.D.Cal.), says at page 211 of his opinion:

Again, at page 209, Judge Carter states:

With respect to evidence of commercial success of a device, so strongly relied on by plaintiff herein, Judge Carter observes, at page 210 of his opinion:

For further authorities re requirement of substantial difference in a design over the prior art, see In re Campbell, 41 C.C.P.A. 896 , 212 F.2d 606 at 610 , and cases there cited.

The court concludes, after examination of the Duplex dispenser, advertised and sold for several years before November 3, 1960, that it is the same as the dispenser covered in the Design Patent, and presently sold by plaintiff, for all practical purposes and in appearance.

Plaintiff urges that there are genuine issues as to material facts to be determined as to:

Although copying a device may prompt the cry of “foul”, where the originator of the device has not protected same with a valid patent, the copying thereof is not prohibited by law. The Supreme Court of the United States, in Sears, Roebuck & Co. v. Stiffel Company, 84 S.Ct. 784 , states:

Later in its opinion, the court observed that Sears had been held liable for unfair competition because of a finding of likelihood of confusion

The court then says:

In a case decided the same day, to wit, Compco Corporation v. Day-Brite Lighting, Inc., 84 S.Ct. 779 , the court states:

By reason of the foregoing observations, findings and conclusions, it does not appear to the court that who invented the plaintiff’s dispenser is material to the determination of the case.

The motion for summary judgment is granted and defendants’ counsel is requested to prepare, serve and lodge amended proposed Findings of Fact, Conclusions of Law and Judgment in accordance with the foregoing memorandum.

This Memorandum Opinion is not to be deemed a final Judgment.