4 F.2d 894 | 2d Cir. | 1924
(after stating the facts as above). The first claim is for the combination of belt sections and garment. Defendant admittedly did not make, use, or sell that combination, and we agree with the lower court that the evidence of contributing infringement is insufficient. As to claim 1, the decree appealed from is right.
The attained object, evidenced by success in commerce, of the patentee’s belt, is to improve upon a belt made either wholly or partially of continuous elastic material. Epstein. (887,610) shows a belt. of'which the front part is rigid and the rear part elastic. Such belt is lengthened by stretching the elastic, and in its stretched condition the skirt is fastened to it. The tension being released, the part of the skirt attached to the elastic section of the belt is automatically gathered. Such a skirt sags down or is displaced when the wearer bends over, according to uneontradieted evidence. >
When, however, the weight of the gathered portion of the skirt hangs from only one of the patentee’s “plurality of strips,” the strip or strips having no weight upon them will, in the language of the speeifica
The invention is a narrow one, and of utility in a single trade; but in that trade it has obtained recognition, and merits legal protection, unless invention must be denied it. Nothing is shown in the prior art requiring discussion, except Liebholz, 1,065,-258. This is a patent for a “skirt” of which the waistband “is provided with an elastic, and the body of the garment with self-adjustable hip portions below the waistband and independent thereof.”
There is shown and described the waistband of a skirt of which the rear portion is a solid elastic band adjustable upon itself like a man’s suspender. This elastic band is coextensive with the top of a flap of the skirt; that is, the skirt may open for the whole extent of the elastic part of the waistband. But in the top of this flap or opening portion of the skirt are a plurality of independent elastic bands attached to the skirt, which is gathered against them. It is specified that what we have just described is “below the elastie waistband portion,” and that the flap (or what the specification calls the “rear body portion” of the skirt), contains “elastic portions independent of the waistband.” It results in Liebholz’s device that the flap or rear body portion- of the skirt itself is given an elastic quality by the elastic attachments to the gathered part of the skirt independent of the belt or waistband. Consequently the flap itself is stretched across the body of the wearer below the belt proper. In other words, Liebholz’s belt does not directly hold up the rear of the skirt at all.
There are obvious disadvantages about this, which Liebholz sought to remedy by attaching a loop to the elastic part of his belt, and hooking or otherwise attaching one. point of the skirt flap to it. In so far as this loop supported any part of the skirt, a bending of the wearer’s body would disturb the whole belt, and in so far as the loop failed to hold up the skirt, a considerable fraction of the weight of the garment failed to find any direct support from belt or waistband.
This is a wholly different concept from that of the patent in suit; it would not do what Seheinman did, nor try to do it in the same way. It is directed that the decree be modified, so as to declare validity in and infringement of claim 4.
Plaintiff will recover the costs of this appeal.
