267 F. 224 | E.D. Mo. | 1920
This is an action by plaintiff, Tweedie, against defendant, for an injunction to restrain infringement of plaintiff’s patent for a boot top, numbered 1,153,977, and dated September 21, 1915, and also to restrain defendant from using plaintiff’s name in and about the sale of boot tops which infringe plaintiff’s patent; that is to say, lor unfair competition.
The art is old. Boot tops of the sort called over gaiters, or “spats,” in the trade, are old. But plaintiff contends that in the boot tops made; under his patent he has by an improvement brought about an entirely new result; that is, that he has produced an article not known to the; trade before his invention. This result he has brought about by such construction of his improved and patented boot top as to cause the lower portion of the front and the heel thereof to hug tightly the shoe and foot on which it is worn. This mechanical result is produced by so cutting the boot top as to produce a “spring” in the front and heel portions thereof. This spring he produces by cutting gores in the two component parts which respectively go to make the heel and toe of his boot top, and which fit over the heel and front of the shoe on which the boot top is worn. The new article so produced by this improved method of cutting is, it is urged by plaintiff, not only a “spat” or over gaiter, but in addition is a novel device, by which a low shoe may, by wearing over same of a Tweedie boot top, be converted, as to every appearance, and for all practical purposes, into a high shoe.
I need not go into the question of infringement. The proof shows conclusively that the article made and vended by defendant is in every respect and appearance a precise replica of the plaintiff’s product, made under a patent issued to him on the 21st day of September, 1915, and numbered 1,153,977. Indeed, no very strenuous contention to the contrary seems to be made. The defense largely is that the patent of plaintiff contains nothing new, when regarded in the light of the prior art, and is therefore void for lack of invention.
In an effort to prove this defense, divers patents, articles, pictures, and drawings were offered by defendant. Some of these were of over gaiters, worn by soldiers as early as the time of Frederick the Great; others hark back to the winter days at Valley Forge. Touching all these it may be said, in passing, that the object and use of them were
I think, upon the facts, I need not, therefore, go into the somewhat vexing question whether Tweedie as patentee is entitled to enjoin the alleged unfair competition in a suit brought in his own name. A fortiori, since a decree upon the other phase found in his favor will in my view afford him ample relief, the decree upon the phase of unfair competition will be denied upon the facts'.
Let a decree, finding the Tweedie patent valid, and finding an infringement thereof, be drawn and submitted, and jurisdiction retained for such other and further orders as may be necessary to an accounting.