PATENT DECISION.


_In the matter of the application of William N. Bartholomew, assignor
to J. Reckendorfer, for letters patent for a design for Rubber
Eraser_--Letters patent for designs have increased in importance within
the past few years. Formerly but few were granted, now many are issued.
To this day they have made so little figure in litigation that but
three reported cases are known in which design patents have come into
controversy. With their increase, questions have arisen concerning their
scope and character, which have given rise to dispute and to inquiry as
to the correctness of the current practice of the office in this branch
of invention. While on the one hand, it is insisted that the practice
has always been uniform, and is therefore now fixed and definite; on the
other, it is asserted, that there has never been, and is not now, any
well-defined or uniform practice, either in the granting or refusal of
design patents.

The act of 1836 made no provision for the patenting of designs. The
earliest legislation upon this subject is found in the act of August 29,
1842, section 3; and the only legislation upon the subject is found
in this section and in section 11, of the act of March 2, 1861. The
definition of the subject matter, or, in other words, of a "design," is
the same in both acts. It is is follows:

"That any citizen, etc., who, by his, her, or their own industry,
genius, efforts, and expense, may have invented or produced any new and
original design for a manufacture, whether of metal or other material