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August 21, 1937


The opinion of the court was delivered by: KIRKPATRICK

This is a suit in equity for infringement of U.S. letters patent No. 1,934,942 to Mostertz, granted November 14, 1933.

 The alleged infringing fabrics are loop pile fabrics of a particular type called frise (also apparently spelled frieze), and are used for upholstery. The patent does not limit its scope to any one variety, but relates generally to all loop pile fabrics.

 There are six claims, of which the last is a method or process claim. It need not be considered separately, because it does not specify any particular method of weaving but consists in dyeing the fabric described in the preceding claims. A typical claim is claim 1, which is as follows:

 "A loop pile fabric having loops formed of a yarn composed of both vegetable and animal fibre threads, the vegetable fibre threads in each of said loops being matted down and the animal fibre threads therein standing more erect."

 Claims 3 and 4 are broader, both of them eliminating the matting down of vegetable fibre threads. Claim 4 describes the animal fibre threads as "projecting beyond the vegetable fibre threads." Claim 3 merely describes the yarns as, "reacting differently to the application of moisture." Claims 2 and 5 describe the animal fibre threads as, "twisting" and, "twisted upon themselves." These last two claims are open to the serious criticism that, if they mean a complete turn or twist as illustrated in figure 3 of the patent, they call for a result which never occurs in practice, and consequently are not infringed.

 It must be emphasized at the outset that this patent has nothing to do with the method of weaving. The specification says, "the invention is in no way limited to the manner of weaving." It applies to all loop pile fabrics -- a broad class of weaves, long well-known and in general use. The only thing by way of manufacturing which the patent even purports to add to the prior art is the idea of making the loop yarns of a combination of vegetable and animal fibre threads. Loops of this kind, the patent says, upon being dyed, produce a fabric in which the animal threads stiffen and tend to stand up in little peaks and the vegetable threads relax and slump down or mat around them. This is the essence of the patent -- a fabric (1) in which the loops are composed of composite yarns, animal and vegetable (2) having a surface which presents tips of animal yarn rising above a groundwork of vegetable threads.

 Now, it is admitted that there is nothing new about the idea of using composite yarns of animal hair and cotton to make the loops in a loop pile fabric, and it goes without saying that a yarn partly composed of cotton is much cheaper than a yarn entirely composed of mohair -- the animal material ordinarily used in these fabrics.

 The patentee in his testimony, in endeavoring to show what novel and useful result was accomplished by his patent, specified a number of advantages which it had over the all-mohair fabrics of similar weave, formerly used in frise for upholstery. But, if these "advantages" be carefully examined, it will be seen that most, if not all of them, arise from the mere introduction of cotton into the loop yarn and do not at all depend upon the characteristic structure which he claims for the finished product. Thus the quality of being less irritating to the skin is entirely due to the presence of cotton, and, if anything, would be defeated or lessened by having mohair points standing up. That the fabric weaves easier because it is lighter in weight and is easier to repair if it breaks in weaving, is due to the same thing. The possibility of producing a two color effect certainly is nothing new and cannot be claimed as any peculiar advantage. Resistance to attacks by moths is also undoubtedly due to the presence of cotton. It takes quite a flight of fancy to attribute this quality to the structure of the cloth by suggesting that the larvae of moths do not eat the mohair because they like to burrow down between the points of the loops where it is warm and dark and where they find only cotton and consequently die of starvation and discouragement. All these so-called advantages can be obtained by introducing a certain amount of cotton in any manner into any mohair fabric.

 The real advantage, of course, of this fabric is that by using cotton threads you can get a cheaper fabric, having whatever useful qualities the cotton can give it, which looks something like the more expensive all-mohair and wears fairly well. In other words, as one of the witnesses, a dyer, said, referring to the instructions which the defendant gave him in making out the alleged infringement, "Make a dollar fabric look like a five dollar one."

 There is little doubt that the motive, at least, in getting out this type of frise was to cheapen the material without too greatly impairing its usefulness. The whole record indicates that the plaintiff, finding a demand for something cheaper than the all-mohair frise, adopted the obvious expedient of adulterating the mohair pile loops with cotton; that having done so, he noted certain structural features of the new fabric which, microscopically examined, were different from the old; and that he thereupon set about giving it an air of patentable novelty by endowing it with a lot of qualities, some of which may have been useful and desirable, but all of which were inherent in the substitute material itself and had nothing to do with the claimed new structure of the finished product.

 But merely substituting cheaper material in an old and well-known structure is not invention. It was well-known that cotton and mohair react differently to dyeing, and the resultant fabric is what anyone skilled in the art would have ...

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