Sosnick

Appellants have brought this action for infringement of a design patent. The District Court ruled that the patent was invalid for the reason that the design was lacking in invention and, upon this ground, dismissed the complaint with prejudice. This appeal was then taken. The sole question raised is the patent-ability of the design.

The design is that of a showcase used principally in the display of cigars. Letters patent were issued to Appellant Cameron upon this showcase on December 2, 1952, being No. Des. 168,288, entitled “Self-Service Display Container.” Appellant Patriarca has acquired a one-half interest in the patent. Appellant corporation of Providence, Rhode Island, is the exclusive licensee for the manufacture and sale of the showcase.

Appellees Sosnick were engaged in the wholesale cigar distributing business in San Francisco. They admit having sold to certain customers cigar showcases manufactured in Los Angeles by the Rubinfeld Showcase Company, identical in design with that covered by the design patent of appellants. Appellee Austruy admits having purchased a Rubinfeld showcase from the Sosnicks.

The District Court had before it, as an example of prior art, a…