c33:No. 297

ROGERS, Circuit Judge.
I dissent. The validity of the patent was not challenged in the court below. It was not challenged because, as that court said, it is apparent by a glance at the prior art there is nothing which comes near it, and it was pronounced valid beyond doubt. That being the case, the sole question in this court is whether the defendant has infringed the complainant’s patent, and I think the court below correctly' found that it did.
The leading case on design patents is that of Gorham Co. v. White, 14 Wall. 511, 20 L. Ed. 731, decided in 1871, when the rule was laid down as follows:
“We hold, therefore, that if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one, supposing it to be the other, the first one patented is infringed by the other.”
In that case there were differences between the plaintiff’s design and those of the defendant’s in details of ornament, but they were the same in general appearance and effect, and so much alike that in the market and with purchasers they would pass for the same thing. The Supreme Court reversed the court below and held the patent infringed. The court said:
“Unless, therefore, the patent is to receive such a construction that the act of Congress will afford no protection to a designer against imitations of his invention, we must hold that the sale by the defendant of spoons and forks bearing the designs patented to White in 1867 and 1868 is an infringement of the complainants’ rights.”
In my opinion the identity of design is much closer in the case now before us than that which existed between the patterns involved in Gorham Co. v. White. The following excerpt is from the testimony of a salesman, buyer, and manager of 24 years’ experience of one of the leading silverware houses in the country:
“Q. From your experience in selling silverware, would, in your opinion, customers, who came to purchase silver to match the plaintiff’s design, if shown the defendant’s design, believe that it was a similar design to the plaintiff’s? A. Yes, sir.
“Q. And they would purchase articles to match the plaintiff’s design of the other company’s production? A. Yes, sir; that would be liable to happen frequently.”
There is other testimony in the record of similar import, and my own inspection of the silverware which was produced upon the argument in this court convinced me that the resemblance between the two designs was such as to deceive the ordinaiy observer, within the rule laid down in Gorham Co. v. White, supra. I therefore think the decree should be affirmed.

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