278 F. 279 | E.D. Pa. | 1921
The general kind of garments to which these patents relate were In vogue at a time “to which the memory of man runneth not to the contrary,” because such garments go back to the time of “broad-fall* breeches. The patents, because of this, relate to improved forms and necessarily to what are really special makes of garments. The patents have already been found to be invalid both in the Second circuit and in the Eastern district of Wisconsin, having been so declared in the case of Johnson et al. v. Lambert, 234 Fed. 886, 148 C. C. A. 484, and the unreported case of Johnson & Cooper v. Browning, King & Co
One form of garment known to the trade was of the type of closed crotch union suit with a slit extending (from a point in the line of the backbone of the wearer and well up toward the shoulders) downward to end near the closed crotch. This slit was closed (when not needed). by its edges being extended into overlapping flaps. When the opening was needed, it was brought about by the material of each edge of the slit being drawn away from what we have called the backbone line, by which the opening was made as wide as desired and large enough to serve all purposes of its use. The inevitable effect was to shorten the vertical dimension of the opening slit. This was thought to be a defect in the plan of the garment because it brought discomfort to the Wearer. The obvious mode of relief was to provide more slack in the vertical length of the slit. The patentee secured it by ending the slit not at and in the center of the closed crotch, but belpw it and to one side. This prompted placing it down one leg under the thigh, and the patentee so positioned the end of the slit in the right leg. So far as we can see, he might just as well have selected the other leg. This is all we can find in patentee’s major patent. The thought of doing this might well be characterized as “clever” or even “ingenious,” as that word is used with more or less inaccuracy in common speech, or any other commending adjective might be applied to it. Was it, however, invention entitling the patentee to the reward of a monopoly which would compel by law the six or more million people who the patentee says wanted to wear a garment of that kind to buy of him or go without?
This record shows that there were numerous variations (including this patentee’s with the others) in the make of these garments. Some closed the slit by wide margins or edges on each side; some by a wider left-side margin overlapping the slit toward the right with no right-side margin or widened edge; some having this overlapping flap of one form and some of another; some fastening it in one way and some another; some fasteners were made removable and some permanent; some ended the slit in the seam of the trouser leg; some at varying distances to the right side of the leg; some began the slit opening in line with the backbone, and some started it at varying distances to the right or left; some made the right-hand edge of the overlap a straight line; some a curve, and some put one or more angles in it; some put fasteners at the upper right-hand corner of the flap of the same kind as the fastener at the lower point, and some had them different. The variations were almost without number. Did each one display invention? The strongest practical obstacle to holding that they did is the experience of each in the Patent Office. When the patentee filed his second application (or one of his applications), he admits there were 20 (defendant counts 26) interferences declared. We understand the Patent Office, after holding them under advisement for seven or eight years, allowed every one of them. These were not all the patents, but
We have been referred to the case of Globe Knitting Works v. Segal, 248 Fed. 495, 160 C. C. A. 505, as an authoritative support for these patents. If the ruling there made applies, these patents are without doubt valid. Does the ruling there made direct the ruling to be here made? We do not so read that case. The ruling of the trial court in that case was clearly based upon a finding of invalidity because, in the view of that court, all' the patentee had there done was to substitute one material for another. It is true a finding of invalidity was sidestepped as unnecessary to be made because the defendant, not having used the same material as the patentee, was not an infringer. The Court of Appeals found that the patentee had done more than merely exchange the material of the prior art for another kind of material.! It followed that the finding of infringement should be reversed. We see nothing in that ruling to affect the ruling to be made in the instant case.
The bill filed is accordingly dismissed, with costs, for want of equity. The plaintiff, having no valid patents, has no exclusive property upon which the defendant could be trespassing and no equity upon which to base its prayers for relief.