As to the first of these questions, it seems to have been assumed that the design spoken of in all parts of the sections referred to covered a fixed, unchangeable figure, that the protection of letters patent did not extend to any variation, however slight, but that such variation constituted a new design, might be covered by a new patent, and might safely be used without infringement of the first. This, it is said, is the correct theory of the law, and has been the uniform adjudication of the Office.

Neither of these statements is absolutely correct. The law by no means defines a design with such strictness. The language is, "new and original design for a manufacture," "new and original impression or ornament," "new and original shape or configuration." It would seem to be too plain for argument, that the new design, or impression, or shape, might be so generic in its character as to admit of many variations, which should embody the substantial characteristics and be entirely consistent with a substantial identity of form. Thus, if the invention were of a design for an ornamental button, the face of which was grooved with radial rays, it would seem that the first designer of such a button might properly describe a button of five rays, and, having stated that a greater number of rays might be used, might claim a design consisting generally of radial rays, or of "five or more" rays, and, that it could not be necessary for him to take out a patent for each additional ray that could be cut upon his button. So, if the design were the ornamentation of long combs by a chain of pearls, it would seem that a claim for such a design might be maintained against one who arranged the pearls, either in curved or straight lines, or who used half pearls only, and that such modifications if they had occurred to the designer, might properly have been enumerated in his specification as possible and equivalent variations. In short, I can see no reason, under the law, why designs may not be generic, why what are called "broad claims," may not be made to them, and why the doctrine of artistic or aesthetic equivalents may not be applied to them.

This has been recognized to a greater or less extent in the adjudications of the courts and in the practice of the Office.

One of the reported cases is that of Booth vs. Garelly 1, Blatch 247. The design is described as consisting of "radially formed ornaments on the face of the molds or blocks of which the button is formed, combined with the mode of winding the covering on the same, substantially as set forth, whether the covering be of one or more colors." The specification, in "substantially" setting forth the design, contained this language: "It will be obvious from the foregoing that the figures can be changed at pleasure by giving the desired form to the face of the mold by depressions and elevations which radiate from a point, whether in the center of the mold or eccentric thereto."

In the consideration of the case by the Court no objection was made to this statement or claim. In the case of Root vs. Ball, 4 McLean 180, the learned judge instructed the jury that "if they should find that the defendants had infringed the plaintiff's patent by using substantially the same device as ornamental on the same part of the stove they would, of course, find the defendant guilty. To infringe a patent right it is not necessary that the thing patented should be adopted in every particular; but if, as in the present case, the design and figures were substantially adopted by the defendants, they have infringed the plaintiff's right. If they adopt the same principle the defendants are guilty. The principle of a machine is that combination of mechanical powers which produce a certain result. And in a case like the present, where ornaments are used for a stove, it is an infringement to adopt the design so as to produce substantially the same appearance."

It has been the constant practice to grant patents for designs for fonts of type, for sets of silver plate, for a series of printers' flourishes, and the like. This class of cases has always passed without objection.

Two other cases which have arisen within the Office deserve notive. The first was for a series of miniature shoulder straps, with emblems denoting rank, provided with a pin, to be worn under an officer's coat, upon his vest, or as a lady's breastpin. The drawing shows eight of these pins with emblems of rank, varying from that of second lieutenant to major-general, specification describing the brooch for a second lieutenant goes on to say: "I propose to introduce, on some of them, the different ornaments showing the respective ranks of the army, from a major-generalship to a second lieutenancy. See Figs. 2, 3, 4, 5, 6, 7, 8."

The second case was that of an application for a monogram visiting card, on which the name was to be inscribed or printed in the form of a monogram. The applicant filed a drawing, showing a card upon which was a monogram of his own name. In his specification he gives certain rules for forming such monograms, and then says: "It is manifest that the form of the letters as well as the letters themselves can be changed as required by circumstances or the taste of the individual for whom the monogram is designed; and that the general form and outline of the monogram may be varied; and indeed, must vary to be adapted to the particular name it is required to represent."

The claim was for "a monogram, visiting card, or visiting card upon which the name is inscribed or printed in the form of a monogram, substantially as herein specified."

This application was rejected by the Examiner and Board of Examiners-in-Chief, but was allowed by the Commissioner upon appeal.