254 F. 698 | 2d Cir. | 1918
The testimony showing the various devices of the prior art does not indicate a hood provided with a. convertible collar, which, when the hood is over the head, provides a shade, or, when allowed to fall in a dependent position at the back, constitutes a finish having the effect of a military collar. The patentee placed on this hood a band, which, when the hood is down, is used as a standing collar about the neck, which had never been applied to hoods attached to capes. This band has beer, referred to in the trade as the “Billey Burke” band. The type of hoods on raincoats used theretofore, when attached to the cape, were elastic about the front edge, and this so as to accommodate the size of the head and make the cape adjustable therefor. It was not practical to have the attached collar, as provided by the patent in suit, entirely elastic, for this would destroy the appearance and the idea of its ñmetion as a collar. It resulted in the patentee making the collar shorter than the hood, and for the space between the ends of the band or collar and the edge of the hood were inserted elastic sections. This afforded a smooth collar, which could provide for the military effect when down, and at the same time retain the elasticity of the hood and thus secure the fit. There was this novelty presented, and the inventor, during the period of three years, sold many thousands of these garments. While this construction is within a limited scope and may be of minor importance, yet it added this novelty and resulted in considerable sales. Its ingenuity and popularity warrants the sustaining of the patent.
In Greenwald Bros. v. La Vogue Petticoat Co., 226 Fed. 449, 141 C. C. A. 278, this court sustained a patent for a petticoat, where the novelty consisted only in the application of an elastic waistband and a knitted hip portion to a woven skirt portion. And again in Witzel v.
No such strap or band is sold with the garment, and no instructions seem to have been given that such use might be made of the defendant’s garment, or result produced, and no evidence is adduced that any such use was ever made of it. The defendant’s present garment, as marketed by it, omits these features which give novelty and popularity. The band about the hood of defendant’s garment constitutes decorative trimming and serves no functional purpose. It is a type of rainproof garment which was old in the art, and at least not such an article of wearing apparel as infringes the complainant’s patent.
Judgment affirmed.