(concurring). I agree with the conclusion reached by Judge HAKE for the reason that a design for a font of type is not patentable subject-matter under the statutes of the United States. What the plaintiff has sought to procure a patent for is not the design when impressed by the types upon paper, but for the design as embodied in the letters and numerals and applied to the metal blocks constituting the font of type; and the question is whether the design, as thus applied, is the subject-matter of a design patent within the meaning of the statutes.
It is apparent that the design as applied to the metal blocks presents no beauty to the eye; it is only when, by the process of printing, the letters and numerals are transferred to paper, that any beauty is disclosed; but the design thus impressed upon paper is not the subject-matter which the plaintiff has claimed and procured a patent for.
In Clark v. Bousfield, 10 Wall. 133, 140, 19 L. Ed. 862, decided by the Supreme Court in 1869, this question was considered in construing a claim for an alleged design under section 11 of the act of March 2, 1861 (12 Stat. 248, c. 88), which statute, so far as the question under consideration is concerned, did not differ from section 4929 of the Revised Statutes, as amended by the Act of Congress of May 9, 1902. In that case the plaintiff had devised a machine with an elastic bed, embodying a design by which the design could be impressed upon the staves of a pail by revolving the pail over the elastic bed, and the question was whether the second claim of the patent was simply for a design, or was for a part of the mechanical device, and, if for the former, whether it was void. It was held, first, that the design was-but incidental to the machine, and had no protection other than that which the patent secured to the inventor of the machine; and, second, that the claim as for a design patent, under section 11 of the act, was-invalid. The court said:
*786“The arranged figure in the elastic bed is not the one protected by the eleventh section of the act of 1861; that is the one which is transferred to ■the pail or wares, where its beauty is first visible to the eye. While it remains in the elastic material, it exhibits no more beauty than if engraved on stone or metal.”
The font of type here under consideration is nothing more than the elastic bed in Clark v. Bousfield. The design there, as applied to the elastic bed, was not a thing of beauty, and patentable under section 11 of the act of 1861, and no more is. the design here, as applied to the metal blocks or font of type, a thing of beauty. It is the design as applied to an article of manufacture, and lending beauty thereto, that is patentable, not the design in the abstract and without reference to an article of manufacture. If the article to which it is applied is of such a character that the design would not render it pleasing to the eye, which is the case here, it is not the subject-matter of a design patent. Gorham Co. v. White, 14 Wall. 511, 525, 20 L. Ed. 731; Foster & Bro. Co. v. Tilden-Thurber Co., 200 Fed. 54, 56, 118 C. C. A. 282, and cases there cited; Rowe v. Blodgett & Clapp Co., 112 Fed. 61, 50 C. C. A. 120.
The decree of the District Court, dismissing the bill, is affirmed. The appellee recovers costs in this court.