law has regard to this in determining priority of invention between two rival claimants.
To enable us to determine the respective dates of invention, the inventive thought is viewed as having stages of development. First we have the origination of the idea or the conception. The only evidence obtainable of this is the testimony of the inventor. Obviously something more than this must be required. Then we have the disclosure to others. This is capable of more definite proof and may establish the fact of the existence of the inventive idea. Next we have reduction to practice, actual or constructive. This date is likewise capable of more or less definite proof. Finally we have the patent application. The date of this is definite.
Out of the fact situation presented the trier of fact is usually able to make a finding of priority in date. To assist him the law supplies artificial aids, such as the prima facie evidence of the grant of a patent and the like. Were our problem that of finding which of the several claimants who figured in the interference proceeding was the first to have the thought of this three carrier method, we could make the finding. This, however, as we view it, is not our problem, except of course the patentee must have been first. That part of the public who buy this product have possible rights which must be considered. The prior art has its possessions, of its right to which it cannot be deprived. If, for illustration, the idea of this three carrier method was one of its possessions, no one can appropriate it by patenting the idea. A patentee does not invent anything by purloining an idea from the prior art. We think this to be obvious. In the first place, he is not an inventor. In the second place, which is much the same thing, if this method was known to those skilled in the art, resort to it would not call for invention.
This opinion has already been drawn out to such length that we content ourselves with the fact finding that the three carrier method was a possession of the prior art. We are led to this conclusion in part by the fact that it was in use by the weaving art and by the kniting art in the knitting of other fabrics intended for human wear. We see no difference between a covering for the torso or something to be worn on the neck and stockings to cover the legs. The possession by the prior art of the idea of the use of the three carrier method likewise gives us an explanation of the other fact features of this case which may have significance. One is the unusually large number of claimed inventors of the idea at stake. This might support the inference that the call made was not for invention but for the application of ordinary skill. The truth is possibly closely akin to this, but it may be expressed under the figure that each of these applicants for a patent was in need of water and each went to the common well of the prior art to get it. No one of them supplied the inventive idea but each took it from the same source.
Another circumstance is that the idea of this method occurred to so many at about the same time and that they were all engaged in a race to the Patent Office. Before 1930 or 1932 no one sought to patent this idea. The explanation is that there was no such demand for ringless stockings as to make a patent worth applying for. When the trade awoke to the demand there was "a mounting in hot haste" of the applicants for a patent. The case of this patentee is typical.Just what date he fixes as his date of conception, the record does not disclose with any certainty. His disclosure to others was, however, February 25, 1932; his reduction to practice in early April and his patent application bears date May 20, 1932. Certainly no grass grew under his feet nor that of any of the others. If the idea was already known and needed only to be tested out in chiffon hosiery wear to demonstrate its practical value, this common rush to the Patent Office is explained.
We conclude this overlong discussion by repeating the finding already in effect made that this patentee was not the inventor of the three carrier method and consequently not the first inventor.
We hurriedly dispose of the additional particular contentions of the defendants, granting to the plaintiffs the full benefit of their prima facie right to a patent monopoly. The real defense is that we have attempted to outline at doubtless overdue length.
Lack of Invention.
It is urged that there was in applying the three carrier method no call for invention but merely for the application of the skill of those skilled in the art.
The argument supporting this overlooks the fact that many in the art ridiculed the idea as futile. This negatives the thought that it was an obvious one.
We dispose of this branch of the defense by holding that if the idea upon which the patent is based was not a possession of the prior art but was first introduced by the patentee, the patent is valid.
By this is meant that the patent is not for a machine but merely a method including its product. The application discloses that the method was to be employed in machinery-made stockings. Before it could be applied a machine must be invented. The claimed patent was in consequence for nothing more than an idea.
This defense overlooks the fact that the three carrier method had long been in use for the making of striped fabrics. There would be no mechanical difference between a machine for making a striped fabric and one for making of the fabric of the patent.
In compliance with Equity Rule 70 1/2 (28 U.S.C.A. following section 723), we make the following findings of fact and state conclusions of law:
Findings of Fact.
1. The three carrier method of making knitted stockings was known to the art before the patentee claimed to have invented it.
2. The patentee was not the first inventor of the patented method of knitting stockings.
3. The patentee did not invent the patented method of knitting stockings.
Conclusions of Law.
1. That patent in suit is invalid for want of novelty in the method patented.
2. The patent in suit is invalid for want of novelty in the product of the patented method.
3.The bill should be dismissed for want of equity.
4. The counterclaim should be dismissed.
For appellate and other purposes no decree is now entered, but leave is given to submit one.
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