No. 1,263 | 7th Cir. | Aug 11, 1906
It will be observed that claim one of the patent as amended, and for the second time rejected, embodied the plies of stretching and unstretching materials, secured together by substantially circular lines of stitching, to give the pad a.concave form;-also that the plies of stretching material should be superimposed by other plies; also that there should be gashes and sub-gashes on the plies of stretching material. This is exactly the combination of the first claim of the patent as allowed, and sued upon, except that in the first claim as allowed, a shoulder extension integral with .the pad, and provided with additional plies diminished in size and stitched together at the edge only, is added. And a comparison of the second claim, as allowed, with the file wrapper and contents shows that it was this addition of a shoulder extension, .integral with the pad, that brought about the allowance of the second claim also. The patentee having accepted these rejections, the patentability of his alleged invention must be determined upon the proposition: Did what was added (the shoulder extension integral with the pad) to what was already old (all the other elements enumerated) make the combination thus completed a patentable invention ?
The Dreyer patent showed a pad that went over the top of the shoulder, the exact extent of this shoulder extension being left undetermined in the description of the patent. It was shown also that a shoulder pad of the character of the Schweichler extension, except that they consisted of two parts sewed together, had been in use prior to Schweichler’s pad. AVhat Schweichler did, therefore, was to make definite in description that which Dreyer had left indefinite; or possibly to unite in one pad what previously had been two pads sewed together.
We do not think that these variations amount to patentable invention. The mere extension of the pad over the shoulder blade would be obvious, it seems to us, to any person who would wish to cover that portion of the body with a pad. Besides, the pad in all other respects being old, its mere extension is not true combination. Nothing is thereby added to the functions of the pad. At most, the extension is a mere enlargement of what previously had been in use — an enlargement that carried with it the exact thought, and the exact mechanism, that characterized the original pads.
The decree must therefore be affirmed.